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Minutes of the annual meeting of the State Literary and Historical Association

Proceedings of the seventeenth annual session of the State Literary and Historical Association of North Carolina

tX')''^'^ ^'^' 2.'2.
PROCEEDINGS
OF THE
SEVENTEENTH ANNUAL SESSION
OF THB
State Literary and Historical Association
of North Carolina
RALEIGH
December 5-6, 1916
Compiled by
R. D. W. CONNOR
Secretary
RALEIGH
Edwards & Broughton Printing Co.
State Printers
1917
h^-^ iw /c^t ^ /S*.
The North Carolina Historical Commission
J. Bryan Grimes, Chairman, Raleigh.
W. J. Peele, Raleigh. D. H. Hill, Raleigh.
Thomas M. Pittman, Henderson. M. C. S. Noble, Chapel Hill.
R. D. W. Connor, Secretary, Raleigh.
Officers of the State Literary and Historical Association
1915-1916.
President Howard E. RoNDTHALER.Winston-Salem.
First Vice-President Miss E. A. Colton, Raleigh.
Second Vice-President Francis D. Winston, Windsor.
Third Vice-President Henry A. London, Pittsboro.
Secretary-Treasurer R. D. W. Connor, Raleigh.
Executive Committee
(With Above Officers).
J. O. Carr, Wilmington. Clarence Poe, Raleigh.
W. L. PoTEAT, Wake Forest. Mrs. Margaret B. Shipp, Raleigh.
R. B. Drane, Edenton.
1916-1917.
President H. A. London, Pittsboro.
First Vice-President Mrs. Marshall Williams, Faison.
Second Vice-President T. M. Pittman, Henderson.
Third Vice-President Mrs. W. N. Reynolds, Winston-Salem.
Secretary-Treasurer R. D. W. Connor, Raleigh.
ElxECUTivE Committee
(With Above Officers).
J. G. deR. Hamilton, Chapel Hill. E. C. Brooks, Durham.
F. B. McDowell, Charlotte. W. P. Bynum, Greensboro.
A. W. McLean, Lumberton.
PURPOSES OP THE STATE LITERARY AND HISTORICAL ASSOCIATION
"The collection, preservation, production and dissemination of State litera-ture
and history;
"The encouragement of public and school libraries;
"The establishment of an historical museum;
"The inculcation of a literary spirit among our people;
"The correction of printed misrepresentations concerning North Carolina;
and
—
"The engendering of an intelligent, healthy State pride in the rising
generations.'*
ELIGIBILITY TO MEMBERSHIP—MEMBERSHIP DUES.
All persons interested in its purposes are invited to become members of
the Association. There are two classes of members: "Regular Members,"
paying one dollar a year, and "Sustaining Members," paying five dollars a
year.
RECORD OF THE STATE LITERARY AND HISTORICAL ASSOCIATION.
(Organized October, 1900).
Fiscal ^^^^ ^^
Years. Presidents. Secretaries. MemhersUp.
1900-1901 Walter Clark Alex. J. Feild 150
1901-1902 Henry G. Connor Alex. J. Feild 139
1902-1903 W. L. PoTEAT George S. Fraps 73
1903-1904 C. Alphonso Smith Clarence Poe 127
1904-1905 Robert W. Winston Clarence Poe 109
1905-1906 Charles B. Aycock Clarence Poe 185
1906-1907 W. D. Pruden Clarence Poe 301
1907-1908 Robert Bingham Clarence Poe 273
1908-1909 Junius Davis Clarence Poe 311
1909-1910 Platt D. Walker Clarence Poe 440
1910-1911 Edward K. Graham Clarence Poe 425
1911-1912 R. D. W. Connor Clarence Poe 479
1912-1913 W. P. Few
1913-1914 Archibald Henderson
1914-1915 Clarence Poe
R. D. W. Connor 476
R. D. W. Connor. 435
R. D. W. Connor 412
1915-1916 Howard E. Rondthaler R. D. W. Connor 501
1916-1917 H. A. London R. D. W. Connor 521
AWARDS OF THE PATTERSON MEMORIAL CUP.
1905
John Chaeles McNeill, for poems later reprinted in book form as
"Songs, Merry and Sad." (Presentation by Theodore Roosevelt.)
1906
Edwin Mims, for "Life of Sidney Lanier." (Presentation by Pabius
H. Busbee.)
1907
—
Kemp Plummer Battle, for "History of the University of North Caro-lina."
(Presentation by Francis D. Winston.)
1908
Samuel A'Court Ashe, for "History of North Carolina." (Presentation
by Thomas Nelson Page.)
1909
Clarence Poe, for "A Southerner in Europe." (Presentation by James
Bryce.)
1910—R. D. W. Connor, for "Cornelius Harnett: An Essay on North Carolina
History."' (Presentation by T. W. Bickett.)
1911
Archibald Henderson, for "George Bernard Shaw: His Life and
Works." (Presentation by Lee S. Overman.)
1912
Clarence Poe, for "Where Half the World is Waking Up." (Presenta-tion
by Walter H. Page.)
1913
Horace Kephart, for "Our Southern Highlanders." (Presentation by
Maurice G. Fulton.)
1914—J. G. deR. Hamilton, for "Reconstruction in North Carolina." (Pre-sentation
by W. K. Boyd.)
1915
William Louis Poteat, for "The New Peace." (Presentation by
Josephus Daniels.)
1916—No Award.
WHAT THE ASSOCIATION HAS ACCOMPLISHED FOR THE STATE-SUCCESSFUL
MOVEMENTS INAUGURATED BY IT.
1. Rural libraries.
2. "North Carolina Day," in the schools.
3. The North Carolina Historical Commission.
4. Vance statue in Statuary Hall.
5. Fire-proof State Library Building and Hall of Records.
6. Civil War battlefields marked to show North Carolina's record.
7. North Carolina's war record defended and war claims vindicated.
8. Patterson MIemorial Cup.
9. Lecture Extension Work started in leading cities and towns.
10. A program of Library Extension Work begun.
STATE ART COMMISSION.
At the session of the Association in 1915 a committee was appointed to
report to the session of 1916 on the advisability of the State's creating a State
Art Commission. The committee reported the proposal favorably, and sub-mitted
a proposed bill for that purpose. This bill was approved by the Asso-ciation.
It was introduced in the General Assembly of 1917, but failed of
passage. It will again be introduced in 1919. In the meantime the Literary
and Historical Association will undertake to create sufiicient sentiment for
the measure to insure its success.
Contents
PAGE
Minutes of Seventeenth Annual Session 9
President's Address. By Howard E. Rondthaler 12
Edward Livingston. By William H. Taft 19
The President and the Presidency. By L. Ames Brown 36
A New Epoch. By William Thomas Laprade 50
The Sovereign State of North Carolina, 1787-1789. By W. W. Pierson, Jr. 58
Suffrage in North Carolina. By W. S. Wilson 70
History of Crimes and Punishments in North Carolina. By Thomas M.
Pittman 78
North Carolina Bibliography, 1916. By Minnie W. Leatherman 86
Members for 1916-1917 89
Proceedings and Addresses of the State Literary and
Historical Association of North Carolina
MINUTES OF SEVENTEENTH SESSION
RALEIGH, DECEMBER 5-6. 1916
Tuesday, December 5th.
The Seventeenth Annual Session of the State Literarv and Historical
Association of ^orth Carolina was called to order in the auditorium of
Meredith College, Raleigh, IsT. C, Tuesday evening, December 5, 1916,
at 8 :30 o'clock, with President Rondthaler in the chair. After a few
opening remarks, congratulating the Association upon its successful
work in the past. President Rondthaler delivered the annual presiden-tial
address. At the conclusion of the President's address Miss Char-lotte
Ruegger, of Meredith College, rendered a violin solo accompanied
by Miss Elizabeth Futrell. President Rondthaler then presented Mr.
L. Ames Brown, a native of I^^orth Carolina who is now a newspaper
correspondent of Washington, D. C, who read a paper on "The Presi-dent
and the Presidency." At the conclusion of Mr. Brown's paper the
President of the Association announced that the Committee on the
Award of the Patterson Memorial Cup had determined to make no
award for the year 1916.
Wednesday Morning, December 6th.
The Association was called to order in the Hall of the House of
Representatives by President Rondthaler at 10 o'clock. The President
presented Dr. W. T. Laprade, Professor of European History in Trinity
College, who read a paper on "A I^ew Epoch." Dr. Laprade was fol-lowed
by Dr. W. W. Pierson, Jr., Associate Professor of History at the
University of ]N"orth Carolina, who presented a paper on "The Sovereign
State of :N"orth Carolina, 1787-1789." Prof. Collier Cobb, Professor of
Geology at the University of l^orth Carolina, followed Dr. Pierson,
addressing the Association on "Historic Highways in JSTorth Carolina."
At the conclusion of Mr, Cobb's address Mr. W. C. A. Hammel, Chair-man
of the Committee on a State Art Commission, presented the report
of the Committee, which was embodied in a proposed bill for introduc-tion
into the General Assembly, providing for a State Art Commission
of &Ye members to act in an advisory capacity in the acquisition, erec-
10 Seventeenth Annual Session
tion and remodeling of State buildings, memorials, monuments, and
other works of architecture and art. After some discussion the report
of the committee was adopted, and the committee was authorized to have
the hill introduced in the General Assembly, and to act as a steering
committee to secure its passage.
The President appointed a nominating committee consisting of Hon.
J. Bryan Grimes, Dr. R. B. Drane, Miss Mary 0. Graham, Mrs. T. W.
Lingle, and Mr. Marshall DeLancey Haywood.
It was moved and carried that a committee of three on increase of
the membership of the Association be appointed, and the President
stated that he would announce the committee later.
Wednesday Afternoon, December 6th.
The session was called to order by President Rondthaler in the Hall
of the House of Representatives at 3 :30 o'clock. Mr. W. S. Wilson,
Legislative Reference Librarian, read a paper on ^^Suffrage in I^^orth
Carolina." He was followed by Mr. T. M. Pittman, member of the
ISTorth Carolina Historical Commission, who presented a paper on
"The History of Crimes and Punishment in ^orth Carolina." Miss
Minnie W. Leatherman, Secretary of the l^orth Carolina Library Com-mission,
presented a report on ''I^orth Carolina Bibliography for
1915-16." The Committee on JSTominations reported the following
nominations for the year 1916-17
:
Major H. A. London, Pittsboro, President.
Mrs. Marshall Williams, Faison, First Vice-President.
T. M. Pittman, Henderson, Second Vice-President,
Mrs. W. N. Reynolds, Winston-Salem, Third Vice-President.
R. D. W. Connor, Raleigh, Secretary-Treasurer.
The report of the committee was unanimously adopted.
Wednesday Evening, December 6th.
President Rondthaler called the Association together at 8:30 o'clock,
in the auditorium of Meredith College. The session was opened with a
violin solo by Miss Charlotte Ruegger, accompanied by Miss Elizabeth
Futrell. President Rondthaler then presented Governor Locke Craig,
who introduced former President William Howard Taft. Governor
Craig paid tribute to Mr. Taft's qualities of statesmanship and legal
abilities, especially to those acts of his administration as President that
tended to obliterate the sectional feeling between the l^orth and the
South. He characterized Mr. Taft as a genuine and true man, worthy
of the high honors which the American people had bestowed upon him.
State Literaky and Historical Association. 11
Mr. Taft addressed the Association on "Edward Livingston and His
Relations to Thomas Jefferson, John Marshall, and Andrew Jackson."
At the conclusion of Mr. Taft's address the Association adjourned sine
die. Following the adjournment of the Association the Raleigh Woman's
Club tendered a reception to the members of the Association and their
guests, in their club rooms.
12 Seventeenth Annual Session
ADDRESSES
President's Address
By Howard E. Rondthaler.
A summary of the purposes of the State Literary and Historical Asso-ciation
of !N"orth Carolina, as published by the society in 1914, declares
that this Association stands for six well-defined objects, to wit
:
"The collection, preservation, production and dissemination of our
State literature and history.
'^The encouragement of public school libraries.
"The establishment of an historical museum.
"The inculcation of a literary spirit among our people.
"The correction of printed misrepresentations concerning N^orth Caro-lina,
and
"The engendering of an intelligent and healthy State pride in the
rising generations."
It is with the sixth and last of these purposes that I am particularly
concerned in these remarks, and I ask permission to paraphrase this
statement in the following words
:
"That we may learn to think intelligently and with healthy pride in
terms of our own State," and this is nothing else than learning to add
both to our national and local point of view that estimate which gives the
State her full and well deserved place.
This will be recognized as that once, perhaps, over-emphasized point
of view from which we have now too much receded. And it is a strangely
far swing of the pendulum that such a statement could ever in fairness
and truth be made of a considerable, if younger, portion of our I^orth
Carolina citizenship. But then, I submit, is it not a paradox that any
American State so clearly and closely definable as is its legal entity and
so jealously bounded as is its political individuality should at the same
moment be so vaguely and faintly differentiated in its physical charac-teristics
and in its social composition from any of its near-by neighbors ?
1^0 one who has crossed from one European country to another,
especially if he has made the passage on foot, but has been struck by
the instant demarkation. Probably some great natural physical bound-ary
has, in the first place, emphasized that passage; then he has sud-denly
come into an environment of a new language, new customs, per-haps
changed habits of dress, a new coinage, and over all and in con-stant
reminder, a new flag.
State Literary and Historical Association. 13
Is it, perhaps, tliat some of the vagueness and indifference of our
State-thought, especially in these restless days of ceaseless travel and
transit, is due to this elemental geographic difficulty arising from the
meandering, nondescript and inconsistent lines of demarkation which
are supposed to separate us from our sister commonwealths?
With great zest and spirit we speak, and still more we sing, concern-ing
the fair borders of this fair State, but, I submit, we well know the
while we thus sing that in reality our borders are nothing but arbitrary
lines, and that no living man can tell except he keep his eyes fixed upon
some occasional marker when he really is passing from J^orth Carolina
into Tennessee, Georgia, South Carolina, or Virginia.
This State, like most others,—study the map for yourself—blends and
blurs into the next neighbor, and, except for the word of the surveyor,—
-
and history knows how they have quarreled about it—there is no bound-ary
at all. Every day this imaginary line is traversed without let or
hindrance, without challenge or ceremony, without sentiment, conscious-ness
or concern.
J^Tow that delight and distinctness of thought which is so necessary a
constituent of patriotism demands and presupposes a certain fact of
separateness, and the first great destroyer of physical distinctiveness is
this blur of boundary so characteristic of I^orth Carolina.
One may ask in all frankness and in all good affection for JSTorth Caro-lina,
pray what have we which is geographically, geologically (element-ally),
physically distinctive which is really and separately ours and ours
alone ?
Our mountains? But are they indeed in their totality ours? Are
they not first borrowed and then later shared ? Do we not return them
as a sort of loan from one State to be duly passed on to three other
States ?
Our rivers? Are they surely and fixedly ours? Have you, I may say
confidentially, ever considered the extraordinarily unpatriotic and fickle
conduct of our rivers ? Three alone are there—the Cape Fear, the Tar,
and the N'euse—that elect to abide at home in I^orth Carolina where
they were born, bred and brought up. As to the others, no sooner does
the Yadkin grow up and see the chance than she not only deserts us,
but even flaunts her infidelity by changing her very name and with
additional gleeful insult, now that she is once gone from us, suddenly
assumes the very unnecessary adjective "Great" to her new entitlement,
becoming then the Great Pee Dee. The Dan,—well you know what the
Dan does, how she flirts back and forth across the Virginia line, and as
though to hide her inconsistency changes her name, too, in an eleventh-hour
repentance, and in her now slowly declining course becomes at last
14 Seventeenth Annual Session
a returned prodigal Roanoke. The Little Tennessee and tlie fair Frencli
Broad leave us to go westward; and our thirsty neighbor, South Caro-lina,
is almost wholly watered—mind you, ivatered—from E'orth Caro-lina
mountain sources.
What have we, then, both distinctive and separate? Our sand hills
and pine forests ? We share these both to the north and south, with this
exception—that our sister States hid them with embarrassed apologies
until we discovered that sand hills and pine barrens could be made to
spell harvest and health—peaches in the crate and peach bloom on the
cheeks.
Our far-famed and oft-sung climate? Do we net but take this while
in transit from somewhere to everywhere? These whispering winds of
which our poets sing, have they not whispered into other ears ere they
found the ears of N^orth Carolinians? and, departing hence, are they
not but seeking and finding new fields for their gentle, albeit inconstant,
sighings ?
What is our own? The Dismal Swamp? Why even this we share
with Virginia.
'No wonder it is difficult to think with prompt clearness upon such a
widely shared background. And what is more, the very size, and espe-cially
one peculiar dimension of this State, offers a sort of disconcerting
challenge to that mind seeking obedience to the aforementioned sixth
commandment of the State Literary and Historical Association of
J^J'orth Carolina : Thou shalt think of N"orth Carolina with an intelligent
and healthy State pride.
Though not the largest in the sisterhood of States, N'orth Carolina is
not frequently surpassed in size, but what is more to the point, there is
ever that disconcerting peculiarity of one of the dimensions of l^orth
Carolina, i. e., that ungainly diagonal of elongation from northeast to
southwest, which produces a result peculiarly disturbing in an attempt
at concrete and concentrated State-thinking. I^othing could be worse
in this respect, except perhaps a panhandle, for every one who knows
the panhandle States knows how really serious and distracting and un-escapable
an affliction a panhandle is in matters of State solidarity. It
is, therefore, an unescapable item of fact in our State existence that,
whereas we are of such comparatively limited dimensions in the direc-tion
in which most folks want to go and along which they therefore
think, i. e., north and south, we are so awkwardly overgrown in our
chief dimension along the line which trade and traffic are least disposed
to travel and people least accustomed to think. There have been men
—
I myself have known one such—who have journeyed those nearly five
hundred miles from Cherokee to Currituck and have survived. The one
State Literary and Historical Association. 16
I knew always talked about it as an epoch, much as Washington Irving
says men did in his boyhood who had actually been to Europe and back.
Of what, then, do we think when, in the spirit of our sixth associated
duty, we strive to think not more highly than we ought to think, but to
think soberly of dear old N^orth Carolina? Probably, first of all, of a
sort of picture on a map. N'orth Carolina—there she lies—behold her?
N^ow why is it that these map-makers always make N^orth Carolina a
pale green or a feeble pink? Can you imagine any less appropriate
color for a rugged, sturdy, wrinkled old State? But is it not true that
most of us, when we seek to visualize I^orth Carolina, instantly see
either faded green or insipid pink?
Or is our point of view when we "think IN^orth Carolina" a sort of
instant mentally defiant attitude which we have through long experi-ence
come instinctively to assume as of those put on their defensive
and ready with patriotic counter-rejoinder to offset some criticism or
depreciation directed against our State?
Or is it a sort of sweet, lulling, sentimental, gentle, fragrant reverie
into which we instantly drop? Magnolias and moonlight and crepe
myrtles and mockingbirds ?
Or is it that we attempt a confused and hurried review of places and
scenes that we love—a certain town, appealing in its very homeliness;
a certain neighborhood, very quiet and unspoiled; a certain landscape,
gentle, verdant, forest-fringed and overhung with the bluest of skies?
Or is it that we think with a sudden heart-quickening sense of just
folks—folks we know and folks who know us, folks we like and folks
who like us, folks in whom we believe and whom we understand—our
sort of folks, Carolina folks.
Of course if a citizen living within an American State had no especial
reason to come into frequent and vital relationship with his own State
it might be a matter of comparative indifference if his State point of
view were vague and his State sentiment faint, but such is the organic
construction of our American State that in reality we are very definitely
dominated, directed, restrained and controlled thereby. The State, I
submit, is designed to come into most intimately influencing and essen-tial
touch with our daily lives.
"All the civil and religious rights of our citizens depend upon State
legislation ; the education of the people is in the care of the State ; with
it rests the regulation of the suffrage; it prescribes the rules of mar-riage,
and the legal relations of husband and wife, of parent and child
;
it determines the powers of masters and servants and the whole law of
principal and agent, which is so vital a matter in all business trans-actions;
it regulates partnership and debit and credit insurance; it con-
16 Seventeenth Annual Session
stitutes all corporations, both private and municipal; it controls the
possession, distribution and use of property, the exercise of trade, and
all contract relations; it formulates and administers all criminal law,
except crimes against the United States, on the high seas, or against the
law of nations. Space would fail in which to enumerate the particular
items in this vast range of power; to detail its parts would be to cata-logue
all social and business relationships, to set forth all the founda-tions
of law and order." I am quoting the definition of the State as
given some years ago by Woodrow Wilson, a Professor of Jurisprudence
and Politics in Princeton University.^
How could the extent and gravity of our relation to the State be more
tersely and comprehensively set forth ?
Has it perchance been the result of long dinning into our Southern
ears that State spiritedness is unpatriotic—is at variance with national
heartedness—that we see so great carelessness as to the State point of
view? Or is it an extreme tendency to localism, each neighborhood
group so intent upon its own affairs, yea each individual so self-centered,
that the wider relations of life, to wit the State, is a matter of utter in-difference?
Has it perhaps been the hard problem of pruning our own
private vine and cultivating our own private fig tree which has led us to
undue concentration upon our own personal affairs at the cost of a State
mindedness ?
I have often looked down from the pinnacled top of our Pilot Moun-tain,
Surry County, and observed in how many instances each single
farm is clustered about and literally hemmed in with its own separating
forest, so that a man's horizon is daily limited to his own immediate
acres; and I have wondered whether this was perhaps both typical and
explanatory of our prevailingly local point of view.
What, then, may serve to quicken this so desirable a State point of
view? What, then, may contribute to heighten for us an intelligent
and healthy appreciation of our own State ?
Let a ISTorth Carolinian, when he thinks of his own State, learn to
think of her in terms of abiding historic incident and of individual
character and leadership. What a muster roll is ours in historic person,
place, and event ! The ever-kindling story of Roanoke Island and
Virginia Dare; the successive settlements and distinctive influences of
Quakers, Cavaliers, Swiss, Scotch, Scotch-Irish, and Germans; the
Regulator War and the Battle of Alamance, Harvey, Harnett and Inde-pendence,
Mecklenburg and Edenton, Moore's Creek and Guilford, Cas-well,
Ashe, Gates, Green, Davie, Swain, Vance, and Aycock. These and
many others like them, these are ours, and these when known, studied
iThe State, p. 473.
State Literary and Historical Association. 17
and appreciated, tend to foster an intelligent and liealthy State pride.
Let him think of l^orth Carolina in terms of her friendly, well-knit,
neighborly, well-acquainted folks—folks with a unique and special oppor-tunity
to know and esteem one another because free from the domina-tion,
political, social and commercial, of any single city, with its invari-able
overlording, its intolerant attitude and supercilious airs—those airs
and that attitude which in other less fortunate States are so apparent
in the city's smug assurance and rasping intolerance towards the rest
of folks.
This State that obtains its leaders straight from the soil, and where
no one ever dreams it necessary to offer an explanation or an apology
because a man came from a farm or from a village.
While 46 per cent of the total population of the I^ation is urban,
which per cent in Massachusetts runs as high as 92 per cent, and in
!N^ew York as 78 per cent, only 14 per cent of ISTorth Carolina's popu-lation
lives in cities or towns with as many as 2,500 people. Indeed,
all the so-called cities in Korth Carolina if combined would only give
us a Reading, Pa., or a Trenton, 'N. J.
Let him learn to think in terms of a State abounding in that good
foundation fact of the Republic—that is, home life; single households
living as units and each under its own roof. And if he be challenged
on this point, let him assure himself with the fact that of the 450,000
families of ISTorth Carolina only 2 per cent must combine to live at the
unhappy rate of more than one family beneath the same roof.
He who would think of l^orth Carolina, let him think in well justified
terms of her marvelous progress. That his is the State which leads the
Union in the number of cotton mills and factories and in the amount
of raw cotton consumed, and ranks second only to Massachusetts in the
value of manufactured cotton products. The State which has doubled
the value of its manufactured products in the last six years; the State
which leads all the South and Southwest in the number of manufac-turing
establishments, in the number of wage-earners, in the total
amount of wages ($46,000,000), and in the values added annually by
the processes of manufacture ($119,000,000).
That his is the State which can and does raise literally everything
from sub-tropic figs to sub-arctic cereals and grasses, with a growing
season that reaches as high as 267 days in the year. That his is the
State which doubled its crop values from 1900 to 1910, and again from
1910 to 1916, and is now producing annually from its soil $242,000,000
worth of agricultural products.
But most of all, if he values his State point of view, let him learn to
think of IsTorth Carolina in terms of service, a service due from him by
]^8 Seventeenth Annual Session
reason of his obligation to tlie past and a service laid upon him now
with pressing insistence by those present conditions which challenge the
spirit to serve on the part of all good citizens. We have come far in
this present generation, but we shall have much before us that is com-pelling
and constraining. Let him reflect that 71 per cent of all the
land in l^Torth Carolina is today a wilderness of idle acres, 22 million
such idle acres the most part of which is yet in scrub pine and broom
sedge. Let him feel the challenge of this fact, i. e., that we could double
our present rural population without disturbing a single home or a
single now cultivated acre and still have left 5 million wooded acres,
forest enough for the fuel and lumber needs of our thus doubled rural
population. That, although our pro rata actual school attendance out-ranks
every other Southern State and is within 1 per cent of the average
for the entire United States, and although illiteracy has dropped mar-velously
in the past ten years, and although our illiteracy per cent is
now lower than that of any of our Southern neighbors, there are yet a
quarter of a million of illiterates within the State. Let him include
this fact in his point of view.
Let him in all good conscience hear and heed the call to community
service, rural and urban. Let him enlist in the combat against prevent-able
disease, poverty, juvenile crime, and all forms of social injustice.
Let him be the sort of man who proves his love of ITorth Carolina by
serving I^orth Carolina, and who earns his right to citizenship not by
the accident of suffrage, but by the high claim of service—our :N'orth
Carolina, old, wrinkled, worn and homely, yet alert, aggressive and
virile, with a compelling quietness, a satisfying strength and a master-ing
gentleness ! The sort of a State you have to love and, therefore, the
sort of State you want to serve.
State Literary and Historical Association. 19
Edward Livingston
By William H. Taft.
When Secretary Eoot was urging me to accept President McKinley's
appointment to the Philippines and was pointing out the reasons why I
should go, he said, among other things, "You will have the same oppor-tunity
for making a Code that Livingston had in Louisiana.'' At the
time I confess I only had an indefinite idea of who Livingston was, or
what his Code was, and in the interval since that time my interest in
him was not again aroused until in the study of the limitations of the
power of the President and his responsibilities I ran across a reference
to the only suit, so far as I know, which has ever been brought against
a President to recover personal damages for an official act as a tort. It
was the suit of Edward Livingston against Thomas Jefferson. The ex-ceptional
character of the action led me on to the story of its origin, and
then into the very romantic and remarkable life of the plaintiff in that
action. I have no doubt that all the incidents that my reading and in-vestigation
developed were well known in the politics of one hundred
years ago, but a century dims much that it would seem never could be
forgotten. At the risk, therefore, of reciting what may be well known
to many of my auditors, I thought I would take for my subject tonight
some of the chapters in the life of a very able and brilliant lawyer, in
which he came into relations, friendly and otherwise, with such men as
Thomas Jefferson, John Marshall, and Andrew Jackson.
Edward Livingston was one of the Livingstons of ^ew York. He was
born in one of the Livingston manors on the Hudson, the youngest of a
large family. Robert Livingston, the Chancellor of JSTew York, the First
Foreign Secretary of the United States under the Confederation, and
the Minister to France who negotiated the Louisiana Treaty with IVTapo-leon,
was his elder brother. His sister married General Montgomery,
who fell at Quebec. Edward was born in 1764, and graduated at Prince-ton
at the age of seventeen in 1781. He studied law at Albany in the
office of Chancellor Lansing, and James Kent, Alexander Hamilton and
Aaron Burr were his intimate fellow students. He was strongly at-tracted
to the civil law, and gave much attention to its study. He
understood French, Spanish, and German, and spoke French fluently
and clearly. He began the practice of law in ISTew York, and soon
acquired a high reputation as a lawyer. Mr. Livingston was a lover of
literature and poetry, and was an orator with most fluent and felicitous
diction. He was greatly interested, however, in politics, and had strong
Republican leanings. He was elected to the Fourth Congress in 1794,
20 Seventeenth Annual Session
again in 1796, and again in 1798. He was an earnest supporter of
Jefferson. When Congress was presenting an address to Washington on
the occasion of his retirement two of the small minority of Congressmen
who objected to certain parts of that address and refused to make the
vote unanimous were Andrew Jackson and Edward Livingston, a cir-cumstance
that many years after probably made easy the intimate asso-ciation
into which these two men came. Mr. Livingston afterwards ex-plained,
in testifying to his great admiration for Washington, that he
did not object to the praise of the man, but he thought the approval of
his administration in the resolutions was unmeasured. It was Mr.
Livingston who moved the resolution requesting President Washington
to submit to the House of Representatives the correspondence between
the State Department and Chief Justice Jay concerning the negotiations
of the Jay Treaty. The President's refusal was based on the ground
that the House of Representatives was not part of the treaty-making
power, and its duty was merely to perform obligations which the Govern-ment
was in honor bound to meet by reason of a treaty duly made and
confirmed. You may remember that the House of Representatives then
passed the Blunt resolution, asserting that in all matters requiring the
action of the House to perform the obligations of a treaty, the House
had a right to be consulted. In President Adams's administration
Mr. Livingston moved resolutions which criticised severely President
Adams's conduct extraditing to England one Robbins, an Irishman,
charged with murder on an English ship on the high seas, who had
escaped to South Carolina, where he was arrested. President Adams
wrote to the United States Judge, giving it as his opinion that the
charge of piracy against the accused could not be sustained, and saying
that if the judge found the facts charged to be probably true he would
issue his warrant of extradition in response to a request from the
British Government. The judge agreed with the President, that the
offense was not piracy, and found there was probable cause for the
charge of murder. Robbins was delivered to the British agent, taken to
England, indicted, tried, and hung. The Jay Treaty provided for extra-dition
for each country to the other of fugitives charged with murder
and other crime, but in view of the unpopularity of the treaty Congress
had passed no act providing the usual statutory machinery for effecting
such extradition. The resolutions charged the President in this case
with unduly interfering with the judicial branch of the Government
and with violating the rights of Robbins by such executive exercise of
power.
John Marshall was a member of the same Congress. Livingston and
Gallatin both spoke in support of the resolutions, and Marshall answered.
State Literary and Historical Association. 21
Marshall's ansAver is one of the most couvincing and able legal argu-ments
ever made. It is reported that Gallatin took notes of Marshall's
argument for a time, and then threw away his memoranda. He was
asked whether he was going to reply to Marshall, and he said he had in-tended
to do so, but that his argument was unanswerable. Marshall
demonstrated that under the constitutional duty imposed upon the Presi-dent
of taking care that the laws be faithfully executed, and the pro-vision
of the Constitution peculiar to our country that treaties are laws
whenever they contain language mandatory and not promissory, it was
not only the power but it was the peculiar function of the President to
perform the obligation of the Government and deliver over this accused
person who came within the letter and the spirit of the written obliga-tion
for extradition. The argument was subsequently published in the
5th Wheaton, United States Supreme Court Reports, Appendix, page 1.
One hundred years later Mr. Justice Gray, speaking for the Supreme
Court, cited this argument of Marshall as a conclusive demonstration of
the power of the President in the execution of treaties as the law of the
United States.
Upon his retirement from Congress, at the end of Adams's adminis-tration
and the beginning of Mr. Jefferson's, Mr. Livingston was ap-pointed
by Mr. Jefferson to be United States District Attorney for ]^ew
York. At the same time Governor George Clinton appointed him to be
mayor of the city of I^ew York. Such pluralism would not be per-mitted
now, but in those days it did not evoke public criticism. Mr.
Livingston held both offices for nearly three years. Then something
occurred which colored his whole life, and which revealed in him a de-fect
of character that followed him throughout his great career and
added much to his disappointment and sorrows. An epidemic of yellow
fever broke out in ISTew York. Mr. Livingston was most active in his
efforts to stamp out the disease and to aid those of the people who were
stricken. He contracted the disease himself, but after a severe illness
recovered from it. While engaged in his works of relief a Government
agent from Washington visited his office as District Attorney and ex-amined
his accounts. In those days the United States Attorney col-lected
funds for the Government and retained large sums on deposit.
The examiner found that Mr. Livingston was short in his accounts, and
first reported the deficit as reaching $100,000. A subsequent audit
reduced it, however, to $40,000. The deficit was due in part at least to
the embezzlement of a trusted clerk, but there was much confusion in
Mr. Livingston's financial affairs, and the defalcation grew out of a
habit, which was inveterate with him, of free living beyond his means.
Livingston at once deeded all his property to the Government of the
22 Seventeenth Annual Session
United States and resigned both offices. The citizens of 'New York,
grateful to him for his great and efficient aid to them during the yellow
fever crisis, petitioned him to withdraw his resignation, but he declined
to change his purpose and immediately left for New Orleans, where he
arrived in February, 1804, with $1,000 in his pocket, to begin life anew.
He was then forty years of age. His first wife, by whom he had three
children, had died in 1801. His children were too young to take with
him to ^ew Orleans, and leaving them with a sister he went alone.
His love of the civil law and his familiarity with it, his knowledge of
Erench and Spanish, and his belief that tliere was a greater opportunity
to repair his fortunes in a new country that was bound to expand rapidly
in population and prosperity, all induced this step. He soon established
himself at the bar of New Orleans and came to the head of it. He
framed a simple code of legal ])rocedure to reconcile the previous civil
law practice to the change of sovereignty from Spain and France to that
of the United States and to the use of the trial by jury into their sys-tem,
as required by the Constitution of the United States. Mr. Jeffer-son
was evidently very distrustful of Livingston because of his defalca-tion
in office under him, and also because he suspected Livingston of
complicity with Aaron Burr. Indeed, General Wilkinson, who was the
military commander in charge of ISTew Orleans in 1806, charged Living-ston
with complicity in Burr's conspiracy. When Livingston appeared
as counsel in a habeas corpus case to secure the release of Bollman, who
had been arrested on a murder warrant, Livingston successfully refuted
the charge upon the spot and no proceedings were begun against him.
But all these circumstances aroused Jefferson's feelings against Living-ston,
and doubtless led him to the course which he took in the famous
Batture controversy. That controversy it is now my purpose to de-scribe.
Soon after Livingston began practice in Louisiana, he had as his
client one John Graveer. Graveer had inherited a tract of land fronting
on the Mississippi River just outside of N^ew Orleans. Against this
land, and outside of and at the foot of the levee, the river had formed
a sand bank, an alluvial deposit called in French a "batture." Graveer
at times had dealt with the batture as the owner and fenced in part of
it. At the same time, however, the citizens of ISTew Orleans had used
it as a common and had drawn sand and dirt from it to build levees.
Livingston examined the title, saw the value the land would have as the
city grew, and bought part of the batture from Graveer. The city
objected to the claim of ownership, and Livingston brought an action in
the territorial court against the city of ISTew Orleans to establish his
title, which in 1807 resulted in a final decision in his favor. He then
State Literary and Historical Association. 23
proceeded to improve the battiire. He built a canal about 250 feet long
right through the batture to the river, and he erected a house on the
land. The batture, of course, was beyond the regular levee. His plan
was to extend the levee around the batture, as had been done in other
cases, and thus bring the batture inside of the levee where it could be
better availed of. While he was engaged in this enterprise his workmen
were driven off by the people of 'New Orleans, who denounced the de-cision
of the court. The territorial governor, Claiborne, sought to
restrain the rioters, and agreed to submit the matter to Washington.
When this was done the question was considered by Jefferson and sub-mitted
to the Attorney-General, who rendered an opinion that this bat-ture
belonged to the United States, because it had belonged to France
and had been conveyed by treaty to the United States. Jefferson there-upon
issued a warrant to the marshal directing him to put all intruders
off of this St. Mary's Batture, as it was known, using United States
military forces if necessary. When Livingston heard of this he applied
to the territorial court, who had given him judgment, for an injunction
to prevent the action of the marshal, and the injunction was issued. But
the marshal, ignoring the injunction, called on a posse comitatus to as-sist
him to take possession of the batture. Livingston was thus sum-marily
deprived of any opportunity to continue his improvement or to
enjoy his property. Livingston then applied to the President, who
would not hear him. He applied to Congress, and successive Congresses,
who gave no ear to his complaint. Finally, exhausting all other reme-dies,
he brought a suit against Thomas Jefferson, the individual, in the
Circuit Court of the United States of Virginia, after Jefferson had
retired from the Presidency, in which he sought to recover heavy dam-ages
for trespass on his land. The case came before the Circuit Court,
Chief Justice Marshall presiding, and District Judge John Tyler, the
father of President Tyler, sitting on the bench with him. Mr. Jeffer-son's
counsel first moved that the plaintiff be compelled to give security
of costs. When this had been satisfied a demurrer was filed to the juris-diction
of the court on the ground that trespass upon real estate was an
action which could only be tried in a jurisdiction where the land was.
This question was heard and evidently considered with care by the Chief
Justice and Judge Tyler, and both pronounced opinions. The Chief
Justice referred to a decision of Lord Mansfield in which it was held
that such a suit could be brought in another jurisdiction, but in spite of
the great authority of that name the Chief Justice was with some reluc-tance
apparently obliged to hold that the weight of authority was
against the exercise of jurisdiction in Virginia over a trespass of land
in Louisiana, and so dismissed the action. Livingston had also brought
24 Seventeenth Annual Session
suit against the marshal in Louisiana. Though he won the suit in the
lower court he lost it on appeal by a divided court, not on the question
of title, but on the ground that the marshal was not personally liable for
acting on the President's warrant. Many years after he did secure some
compensation which was not adequate to the loss he had sustained, and
which was the result of compromise. This batture controversy had at-tracted
the attention of the jurists and politicians of the United States,
and Mr. Jefferson had been criticised by Chancellor Kent and others
for what was regarded as his arbitrary and high-handed course.
In a letter of Marshall to Story referring to some severe denunciation
of the Federal judiciary by Jefferson, which was frequent with him,
Marshall said : "He cannot forget Marbury and Madison or the bat-ture."
To meet these criticisms, after the decision in the Virginia case, Mr.
Jefferson published what he entitled "The Proceedings of the Govern-ment
of the United States in Maintaining to the Public the Beach of
the Mississippi Adjacent to l!^ew Orleans Against the Intrusion of Ed-ward
Livingston, Prepared for the L^se of Counsel by Thomas Jeffer-son."
It was first printed in ISTew York in 1812, and then later repub-lished
in Hall's American Law Journal, volume 5, in 1814. Mr. Jeffer-son's
statement began as follows
:
"Edward Livingston, of the territory of Orleans, having taken possession
of the beach of the river Mississippi adjacent to the city of New Orleans, in
defiance of the general right of the nation to the property and use of the
beaches and beds of their rivers, it became my duty, as charged with the
preservation of the public property, to remove the intrusion, and to maintain
the citizens of the United States in their right to a common use of that beach.
Instead of viewing this as a public act, and having recourse to those proceed-ings
which are regularly provided for conflicting claims between the public
and an individual, he chose to consider it as a private trespass committed on
his freehold, by myself personally, and instituted against me, after my retire-ment
from ofllce, an action of trespass, in the circuit court of the United
States for the district of Virginia. Being requested by my counsel to furnish
them with a statement of the facts of the case, as well as of my own ideas
of the questions of right, I proceeded to make such a statement, fully as to
facts, but briefly and generally as to the questions of right. In the progress
of the work, however, I found myself drawn insensibly into details, and finally
concluded to meet the questions generally which the case would present, and
to expose the weakness of the plaintiff's pretentions, in addition to the
strength of the public right. * * * j passed over the question of jurisdic-tion,
because that was one of ordinary occurrence, and its limitations well
ascertained. On this, in event, the case was dismissed; the court being of
opinion that they could not decide a question of title to lands not within their
district. My wish had rather been for a full investigation of the merits
at the bar, that the public might learn, in that way, that their servants had
State Literary and Historical Association. 25
done nothing but what the laws had authorized and required them to do.
Precluded now from this mode of justification, I adopt that of publishing what
was meant originally for the private eye of counsel."
Jefferson's statement covers 115 pages. He was answered by Mr.
Livingston in 175 pages. Mr. Livingston opens his answer as follows:
"When a public functionary abuses his power by any act which bears on
the community, his conduct excites attention, provokes popular resentment,
and seldom fails to receive the punishment it merits. Should an individual
be chosen for the victim, little sympathy is created for his sufferings, if the
interest of all is supposed to be promoted by the ruin of one. The gloss of
zeal for the public is therefore always spread over acts of oppression, and the
people are sometimes made to consider that as a brilliant exertion of energy
in their favor, which, when viewed in its true light, would be found a fatal
blow to their rights.
"In no government is this effect so easily produced as in a free republic:
party spirit, inseparable from its existence, there aids the illusion, and a
popular leader is allowed in many instances impunity, and sometimes re-warded
with applause for acts that would make a tyrant tremble on his
throne. This evil must exist in a degree; it is founded in the natural course
of human passions—but in a wise and enlightened nation it will be restrained
—and the consciousness that it must exist will make such a people more
watchful to prevent its abuse. These reflections occur to one whose property,
without trial or any of the forms of law, has been violently seized by the
first magistrate of the Union—who has hitherto vainly solicited an inquiry
into his title, who has seen the conduct of his oppressor excused or applauded,
and who, in the book he is now about to examine, finds an attempt openly
to justify that conduct upon principles as dangerous as the act was illegal
and unjust."
I have read both. Mr. Jefferson's suggestions and Mr. Livingston's
answer, and they are well worth reading. Mr. Jefferson's suggestions
are a labored defense of what seems to me to have been a plainly inde-fensible
action. He sought, first, to show that Livingston did not have
the title to the land from which he ousted him, but that it was in some
third person—an utterly insufficient defense, because Mr. Jefferson's act
could not rest for justification on the title of some other person but
only on the title of the United States. In asserting the title of the
United States he proceeded, with an industry most commendable in a
better cause, to quote from the law of France and Spain on the subject
of "alluvial increases to river banks," and to show that the title of the
batture was in France and passed from France to the United States.
The answer of Mr. Livingston was, as that staid old authority, the
British Encyclopedia, says, "a crushing one." It left Mr. Jefferson no
place to stand upon either in his argument that the batture belonged to
the United States or in his claim that under the act of Congress he was
26 Seventeenth Annual Session
entitled to remove squatters from Government property. The istatute
plainly had no relation to one who had acquired his title before its pas-sage,
or indeed to one who had a title such as Livingston had sustained
by the decree of a competent court, even though that decree was not
binding upon the United States as a party to it. The trenchant style,
the satire and the irony an,d the invective of Livingston must be read to
be appreciated. One can well understand how Chancellor Kent could
write to Livingston felicitating him on the complete demonstration of
his right and Mr. Jefferson's wrong. I admire Thomas Jefferson as a
genius in many ways, as a patriot, a real Democrat, a promoter of edu-cation,
the founder of the University of Virginia, and a great statesman
and politician, but he does not appear at his best in this batture contro-versy.
The special pleading of which he is guilty, the inconsistencies of
the positions that he takes, his disingenuous citations, leaving out im-portant
additions that would change the effect of the citation as author-ity
are all brought out by Mr. Livingston with clearness and force and
with a sincere indignation that manifested itself sometimes in the keenest
ridicule and at other times in the most eloquent invective. He closed his
answer as follows
:
"I now take my leave of Mr. Jefferson, In my answer, I have confined
myself to his book. Notwithstanding the strong temptations which assailed
me almost in every page, I have strictly kept within the boundaries of a just
(and, I think, considering the wanton attack) a mild defense. My future
conduct will depend much on that of my adversary. I shall continue to reply
to every argument that may be addressed to the public on this subject.
Knowing that my cause is good, I do not despair even with humble preten-sions,
to make its justice appear. For this purpose I have always courted
investigation; I should have preferred it in a court of justice, but do not
decline it before the public,
"Though some may condemn me only on hearing the name of my opponent,
there are many, very many in the nation, who have independence enough to
judge for themselves, and the ability to decide with correctness—to such I
submit the merits of a controversy which has been rendered interesting as
well from the constitutional as the legal questions it involves, and on which
Mr, Jefferson has, by his management of it, staked his legal, his political,
and almost his moral reputation. That he should not have understood the
nature of my title and the different foreign codes on which it depends, is no
reproach; that he should have acted at all without this knowledge, must sur-prise—
that he should have acted forcibly, must astonish us, but, that he
should persevere in the same pretense of understanding the laws of France
better than gentlemen bred to it from their childhood, and who, engaged on
the same side of the controversy with himself, have abandoned the ground
he has taken, that he should obstinately justify an invasion of private
property, in a manner that puts it in the power of a president with impunity
to commit acts of oppression at which a king would tremble—that he should
do all this and still talk of conscious rectitude, must amaze all those who look
State Literary and Historical Association. 27
only to the reputation he has enjoyed, and who do not consider the incon-sistency
of human nature, and the deplorable effects of an inordinate passion
for popularity."
So far as I know, Mr. Jefferson made no further answer. Indeed it
would have been difficult for him to do so.
After Livingston had prepared his Criminal Code for Louisiana,
which gave him deserved and worldwide fame as one of the great law-givers
of modern times, and of which I shall say something later, he
sent it to Mr. Jefferson for suggestions. Mr. Jefferson pleaded his great
age and his inability to comment upon the Code as it deserved, but he
said:
"I have attended to so much of your work as has heretofore been laid before
the public, and have looked with some attention also into what you have now
sent me. It will certainly arrange your name with the sages of antiquity."
And he closes a long letter with this expression : ^'Wishing anxiously
that your great work may obtain complete success and become an exam-ple
for the imitation and improvement of other States, I pray you to be
assured of my unabated friendship and respect."
Ten years after Jefferson's death Livingston appeared as senior coun-sel
for the city in the case of New Orleans v. the United States, argued
and decided in the Supreme Court of the United States in 1836 and
reported in 10th Peters, 662. The question in the case was unlike that
in the Batture case. The city of l^ew Orleans had extended its streets
across what was really a batture down to the river. The tract had been
gradually enclosed within the extended levee. The issue was whether
the United States by transfer from France and Spain had not acquired
such a right in this open space as to prevent the city from extending its
streets through it. Mr. Webster was associated with Mr. Livingston in
representing the city and Benjamin F. Butler, Attorney-General of the
United States, represented the Government. In the course of the argu-ment,
Mr. Butler referred a number of times to Mr. Livingston's answer
to Mr. Jefferson and commended the accuracy and lucidity of his deal-ing
with certain of the issues arising in the case then under argument.
When Mr. Livingston came to reply he used this language, which will
be found on page 691 of 10th Peters
:
"The reference to the pamphlet, from which the argument has been drawn;
the flattering terms in which the attorney-general has been pleased to speak of
it; and the possibility that, in looking at it, the court may recur to other parts
than those immediately relating to the question before them, oblige me to ask
their indulgence for a single observation; irrelevant, it is true, to the case, but
which I am happy to find an opportunity of making. The pamphlet was
28 Seventeenth Annual Session
written under circumstances in which the author thought and still thinks, he
had suffered grievious wrongs; wrongs which he thought, and still thinks,
justified the warmth of language in which some parts of his arguments are
couched; but which his respect for the public and private character of his
opponent always obliged him to regret that he had been forced to use. He
is happy, however, to say, that at a subsequent period, the friendly intercourse
with which, prior to that breach, he had been honored, was renewed; that
the offended party forgot the injury; and that the other performed the more
difficult task (if the maxim of a celebrated French author is true) of forgiving
the man upon whom he had inflicted it. The court, I hope, will excuse this
personal digression; but I could not avoid using this occasion of making
known that I have been spared the lasting regret of reflecting that Jefferson
had descended to the grave with a feeling of ill will towards me."
The case was decided in favor of tlie city of 'New Orleans and against
tlie United States. In leaving the Batture case I should say that Liv-ingston
bought his interest in it originally Avith the hope that its in-crease
in value would enable him to pay off his debt to the United States
growing out of the defalcation as District Attorney of New York. He
had confessed judgment for more than $100,000 and had surrendered all
his then property to satisfy as much as it would. The batture followed
him for many years of his life, and while he lived was a liability and
drained his pocket and his strength. He did settle his debt wath the
United States, however, principal and interest, the interest amounting
to more than the principal. When Jackson sent his name to the Sen-ate
as Secretary of State, Clay moved a scrutiny of the settlement of
Livingston with the Government. Lie was induced to withdraw the
motion on Senator Dallas's assurance of its entirely honorable character,
but this did not prevent Clay in subsequent attacks upon Jackson from
classing Livingston with notorious defaulters in the Government.
There remains for me to say something of Livingston's relations to
Andrew Jackson and of the Code upon which rests his chief right to
rank among the really great. In 1814 the English were threatening the
territory of the United States along the gulf, and General Jackson,
stationed at Mobile, was taking measures to meet them. The English
hoped that the Erench and Spanish Creoles, with whom the transfer of
Louisiana had not been very popular, might be induced to welcome them
and side with them. There were other elements, too, in the community,
whose loyalty was uncertain. There were the free persons of color, and
there were the slaves. Livingston, who had become the acknowledged
leader of the bar of New Orleans, was much concerned, and was active
in seeking to arouse all the people to the necessity of measures for de-fense.
Having married a Erench lady a year after he came to Louisiana,
for his second wife, he was popular with the Erench and was effective
I I ! r
State Literary and Historical Association. 29
in enlisting tlieir support. Having known Jackson through his associa-tion
with him in Congress, to which I have ah*eady referred, Jackson
was glad to avail himself of his services. Jackson, when he came to 'New
Orleans to look the ground over, dined with Livingston the first evening,
and soon thereafter appointed him as a volunteer aid. Livingston was
very active before and during the Battle of Kew Orleans. He exposed
himself in his duties many times, and his courage and eifectiveness
called forth the warm approval of Jackson, who gave him his portrait
with a most commendatory inscription. The artist was French and gave
Jackson a much more ISTapoleonic cast of countenance than Jackson's
other portraits led us to think he had. Livingston continued to serve
Jackson until he left l^ew Orleans. He interpreted Jackson's addresses
to the French and he lent him his aid in every way by advice and
activity.
Livingston was a man of sweet disposition, charming manner and
great goodness of heart, but the historians refer to him in a way that
indicates that his reputation in Louisiana for probity was not unques-tioned.
Professor Bassett, in his life of Andrew Jackson, speaks of
Livingston as a lawyer of "talent, but not too scrupulous." Gayarre, in
his history of Louisiana, refers to him as the first lawyer of JSTew Orleans,
but "of supposed rapacity." It is to be presumed that the story of his
defalcation had followed him to ISTew Orleans, and it is quite evident
that he had encountered much criticism of the people of New Orleans
in his effort to possess himself of the batture. Moreover, in the zeal of
his advocacy, he had incurred enmities and aroused criticism in which
there was some element of justice. All his life long he contracted debts
and did not pay them promptly.
For four or five years before the Battle of I^ew Orleans a band of
men who called themselves privateers and who preyed upon Spanish
vessels had their headquarters on an island in one of the bayous west
of the mouth of the Mississippi called "Barrataria." The island was the
island of Grande Terre. They first claimed their commission as priva-teers
from the French island of Guadaloupe, and when that was captured
by the English they solicited and obtained a commission from a newly
established republic of Cartagena, claiming independence from Spain.
They carried on a very lucrative business of defrauding the enemies of
the United States by smuggling the merchandise plundered from Spanish
merchantmen into l^ew Orleans. Their sale of these smuggled goods
was open and almost defiant. The people from ISTew Orleans, many of
them, connived at it and bought the articles sold, although Claiborne
protested and besought the Legislature of the State in vain for aid to
suppress this lawlessness. Finally a naval expedition of the United
30 Sevew^teenth Annual Session
States Government broke up their settlement at Grande Terre and cap-tured
one of the two brothers Lafitte, who were the leaders. Professor
Bassett says that Livingston represented them as counsel. Whether this
representation was after only some of them had been captured and im-prisoned
in ISTew Orleans, and he was merely appearing in their defense,
or whether it had been maintained earlier pending their illicit business
career, of which there is some intimation, does not distinctly appear.
In spite of the successful naval expedition against them, the Barra-tarians
seemed to have returned to Grande Terre whence they had fled,
and there under Jean Lafitte resumed operations. While there in 1814
a British war vessel came to Barrataria Bay, and the British Admiral
in command in the Gulf offered Lafitte a commission in the English
J^avy and a large sum of money if he and his men would join their
forces. Lafitte sent the communications to a friend in ISTew Orleans to
be presented to the authorities. His brother was still in prison. When
this became known, Jackson in issuing a proclamation to the people
referred with scorn to the fact that the English sought to associate them-selves
with "pirates, and robbers and hellish banditti." Afterwards,
however, he was glad to accept their services in defense of 'New Orleans,
and in his general orders after the battle referred to them as gentlemen
and privateers, with great commendation of their courage and valor.
After the battle Jackson continued the martial law when the necessity
for it had ceased, and issued an order sending the French aliens out of
the city. A French naturalized citizen published a letter in which he
criticised this order severely. Jackson had him arrested and committed
to jail. Hall, who was the United States District Judge, issued a writ
of habeas corpus to inquire into the legality of this arrest. Jackson
thereupon arrested the United States Judge and confined him. After
the news of peace came martial law was suspended, and Judge Hall, at
the instance of the District Attorney, cited Jackson for contempt. Jack-son
attempted to answer, but the court declined to hear him and fined
him $1,000, which he paid. It is suggested, though without direct proof,
that Livingston was Jackson's adviser in this illegal course, but it is
difficult to believe that Livingston, with his accurate knowledge of the
law, could have allowed himself to give such advice. It is established,
however, that Livingston drafted the answer which Jackson attempted to
make to the proceeding instituted against him in Judge Hall's court for
contempt. It is noteworthy that the Barratarians were present when he
was summoned for contempt, and proposed to throw the judge into the
river, but Jackson repressed any such lawlessness, submitted to the juris-diction
of the court, and paid the fine. Subsequently he threatened to
secure impeachment proceedings against Judge Hall, but wisely allowed
the matter to drop.
State Literary and Historical Association. 31
Livingston liad not succeeded financially. His expenses were heavy.
As already said, the time that he had consumed on the Batture contro-versy
and the money expended were a loss, and the deht which he had
confessed judgment for to the Government still hung over him. His
affection for his wife and children was very tender. He had suffered
great grief in the loss first of a daughter and then of a son, neither of
whom he was able to see as much as he would. His letters to his son
are full of affection, wise advice, and may be compared in some ways
with the letters of Lord Chesterfield to his son. The beauty, fluency,
terseness, wit and humor of his style make the reading of anything that
he wrote most delightful. He was a man evidently of the kindest feel-ing,
anxious to please, anxious to help, a man of high ideals, if one can
judge by his expressions, but always belabored by financial burdens, due
to his lack of economy and business sense. The lady whom he married
for his second wife had herself had a romantic life. She was the daugh-ter
of a French noble family which had migrated from France to San
Domingo, and had acquired great wealth and constructed a marble
palace on the sea and surrounded themselves with hundreds of slaves, a
great plantation, and a most luxurious environment. The revolt of the
negroes in the island drove the family to ISTew Orleans. Mrs. Livingston
was a widow of not more than twenty when Mr. Livingston married her.
She had married for the first time at the age of thirteen, had lost three
children and her husband, and had returned to her father's house. In
her escape from San Domingo with her younger sister by a British
warship she saw her grandmother, who was in her party, killed by a
bullet of one of the revolting negroes. She was a very beautiful woman,
a woman of great culture, wide reading, and a real helpmeet of Living-ston
in his political career thereafter. He always kept open house in
'New Orleans, Washington, and Paris, and Mrs. Livingston presided in
his home with a grace and charm and distinction that all the statesmen
of the day noted.
From his earliest experience in Congress, Livingston had manifested
an interest in a reform of the criminal laws, and had moved a resolution
for a revision of the criminal laws of the United States while he was
still a representative in Congress from l^ew York. He had an interest
in the humanizing of the criminal laws and the punishment of criminals
as deep and earnest as that of Romilly or Howard. In 1821 the Legis-lature
of Louisiana elected him to revise the entire system of criminal
law of the State. He was admirably fitted to do this. He had a pro-found
understanding of jurisprudence and the widest knowledge of the
codes of the various legal systems of the world, especially the common
law, the Roman law, the civil law, the Spanish Code, and the Code
ISTapoleon. He had a fluency in felicitous, accurate, lucid, terse but com-
32 Seventeenth Annual Session
prehensive expression that was remarkable and supplied just what was
needed in a lawgiver. With the most absorbing industry he devoted his
attention to the preparation of what was certainly an ''opus magnumf
He called his work a penal system consisting of four codes, a code de-fining
crimes, a code of criminal procedure, a code of evidence, a code
of prison reform, with an appendix of definitions. He wrote in his
report to the Legislature a volume of explanation and argument to
justify each code which he had prepared. After he had devoted three
years to this labor and had prepared the manuscript for the printer he
suffered the unusual misfortune of having his entire manuscript, of
which he had no copy, destroyed by fire. But so clearly defined in his
mind had his work become that in two years more he was able to repro-duce
both the code and his argument for it and his explanation. ]^o one
can read, even in a cursory way, as I have done, the plan of the code,
his explanations of it, and the style of the various sections of it, with-out
joining the world of his time in profound admiration for his work.
It gave him a reputation abroad as a jurist on the continent certainly
equaling that of either Story, Marshall, or Kent. He was made a mem-ber
of the institutes of many countries, notably that of France, and the
great American lawyers all pronounced encomiums upon his work. Ben-tham,
the great English philosopher and law reformer, was most pro-nounced
in his praise of the work.
Livingston was fifty years ahead of his day in the liberality of his
enlightened provisions for punishment. In the preamble of the Code
he proposed, was this
:
"Vengeance is unknown to the law. The only object of punishment is to
prevent the commission of offenses; it should be calculated to operate: First,
on the delinquent, so as by seclusion to deprive him of the present means,
and by habits of industry and temperance, of any future desire to repeat the
offense.
"Secondly, on the rest of the community, so as to deter them by the
example, from a like contravention of the laws. No punishments greater than
are necessary to effect these ends, ought to be inflicted. No acts or omissions
should be declared to be offenses, but such as are injurious to the State, to
societies permitted by the law, or to individuals.
"But penal laws should not be multiplied without evident necessity; there-fore
acts, although injurious to individuals or societies, should not be made
liable to public prosecution, when they may be sufficiently repressed by
private suit."
Again
:
'
"Penal laws should be written in plain language, clearly and unequivocally
expressed, that they may neither be misunderstood nor perverted; they should
be so concise, as to be remembered with ease; and all technical phrases, or
words they contain, should be clearly defined. They should be promulgated in
such a manner as to force a knowledge of their provisions upon the people;
State Literary and Historical Association. 33
to this end they should not only be published, but taught in the schools; and
publicly read on stated occasions.
"The law should never command more than it can enforce. Therefore,
whenever, from public opinion, or any other cause, a penal law cannot be
carried into execution, it should be repealed."
He was very much opposed to capital punisliment, and made the pun-ishment
hard labor for life. He was very anxious to prevent contamina-tion
of criminals by association, and he provided for a separate confine-ment
of prisoners. He divided them into classes. Those under eighteen
he sent to one prison of reform and those above eighteen to another.
He provided vocational education for the younger class. Modern penolo-gists
may not agree with all his ideas, but the liberality of his purpose
and the general practical details that he inserted in his Code are quite
wonderful in view of the conditions that then prevailed.
It is not surprising, in view of this work, that Sir Henry Main, him-self
a great expounder of law, spoke of Livingston "as the first legal
genius of modern times." The Legislature of Louisiana was not sufii-ciently
progressive and courageous to adopt his code, but many States
have borrowed from it. His code of reform and prison discipline was
adopted by Guatemala. When a World Congress of Prison Reform was
about to be held in Europe a new edition of his works on the criminal
law, including this code and one prepared by him while in Congress for
the United States, was published with an introduction by Chief Justice
Chase, who speaks in highest commendation of Livingston as a world
reformer in this field. After the completion of his criminal code he was
appointed on a committee to draft a civil code of Louisiana, which the
Legislature for the most part adopted in 1825. The most important
chapters of this, including all those on contracts, were prepared by
Livingston alone.
Livingston was elected to Congress and represented Louisiana from
1823 to 1829. Because of his duties in Congress he did not return to
Louisiana to seek a reelection, and probably because of his absence he
was defeated. But the Legislature of Louisiana thereupon elected him
to the Senate, and he entered that body with Jackson's inauguration
as President and served there. He was offered the mission to France
by President Jackson after he had been elected to the Senate, but he felt
obliged for financial reasons to decline. As already said, he was one
of Jackson's intimate friends, and was perhaps one of the first to
propose to him that he should be a candidate for the Presidency.
After Van Buren retired from the State Department under Jackson,
Livingston was invited to succeed him, and with some hesitation he
accepted.
During Livingston's service in Jackson's Cabinet the controversy arose
between the Government of the United States and the State of South
34 Seventeenth Annual Session
Carolina over tlie enforcement of the customs laws of the United States,
and the Legislature of South Carolina passed its nullification ordinances.
Livingston, as Secretary of State, wrote the proclamation which Jack-son
issued to the people of South Carolina and to the people of the
United States on the subject of nullification. It is an admirable docu-ment,
and, as has been truly said, it argues the case against nullification
with all the charm, force and style of John Marshall. The vigor of the
assertion of ISTational power was so great that some of Jackson's friends
were troubled over what they called the '^Metaphysics of the Montesque
of the Cabinet."
Jackson was very fond of Livingston, but, as the correspondence
shows, he did not have the profoundest confidence in his political judg-ment.
He spoke of him during his incumbency as Secretary of State as
a polished scholar, an able writer, and a most excellent man, but he said
"he knows nothing of mankind, and he lacks Van Buren's judgment."
He also referred to the fact that his memory was then somewhat failing
him.
In the controversy with the United States Bank and Jackson's deter-mination
to remove the deposits, Livingston was not in full sympathy
with him and tried to effect a settlement and compromise between the
contending parties; but he failed. Jackson then renewed the offer to
Livingston which he had made him at the beginning of his administra-tion,
that of the post of Minister to France. The post, always honorable
and important, was especially so at this time when an issue was pend-ing
as to the payment by France of what were known as the French
spoliation claims, which France had agreed to pay, but failed to appro-priate
the money for. Louis Philippe was then King of the French and
found difficulty in persuading the French Assembly to make the appro-priations.
Livingston accepted the offer, left the Cabinet and went to
France. In his usual state of pecuniary distress he borrowed $18,000
from the United States Bank. In view of the strained relations between
Jackson and the bank, which Livingston sought to relieve by a compro-mise,
the acceptance of such a favor from the bank scandalized his
friends.
Livingston's life in France as Minister, of course, was full of delight.
Lie and his wife came into close relationship with Lafayette, who was
still living and had been a bosom friend of Livingston's family. As an
Associate Member of the French Institute, life in Paris was all he could
desire. He succeeded after much effort in securing an appropriation by
the French Assembly of the money due under the treaty, but it was
accompanied by a condition that President Jackson should withdraw
certain strictures that he had made upon the French Government in a
State Literary and Historical Association. 35
message to Congress. The result was that ultimately Livingston asked
for his passports and returned to the United States, where he was re-ceived
with great warmth. The matter was settled by the mediation of
England, the money was paid, and a construction which General Jack-son
put upon his message was held by the French to be an explanation.
Livingston wished to return to France, and intimated his willingness to
do so to Jackson, but Jackson appointed Cass. Livingston retired to the
estate which had been left him on the Hudson by his sister, Mrs. Mont-gomery,
and there lived out the few years of his life remaining.
This is the career of a great jurist and lawgiver. There are few lives
in our history more replete with unusual and romantic incidents, with
variety of experience, with great constructive and useful work. His
close association with the other great men of the country doubles one's
interest in him. His fame was greater abroad than at home. While we
reluctantly confess that he had weaknesses, we would forget it in the
light of his genius and his heart. A study of his personality charms.
His broad sympathies awaken affection. The great code of enduring
usefulness which he left to his countrymen and the world commjands our
grateful admiration.
36 Seventeenth Annual Session
The President and the Presidency
By L. Ames Brown.
I.
It is much too early yet for us to attempt to estimate Mr. Wilson as
an historical figure. We are too near him for that and our perception
is too subject to the feelings which have heen aroused by his policies
and the events of the times. I^evertheless^ the business of assessment
and review may not be altogether unprofitable now that Mr. Wilson's
first administration is drawing towards its end; nor can we fail to ren-der
service by careful efforts to ascertain the essential features of the
very individual part he has played in our affairs. Fortunately, we have
standards which are sufficiently clear to make feasible an effort to gauge
the importance of those aspects of his work which have affected the
character of the office he has held. So our task is by no means hopeless
when we essay to find out how the Presidency has been shaped or
moulded by Mr. Wilson.
Mr. Wilson throughout his long application to the study of our gov-ernment
has been a severe critic of what he terms the J^ewtonian theory,
which would require a strict adherence to the limitations and checks
imposed by the Constitution; he has consistently upheld the view that
the spirit of the Constitution is capable of being stretched as the IsTation
grows, and has regarded our fundamental law as a plastic thing designed
to accommodate itself to the changing life of the people. As recently
as 1913 Mr. Wilson observed that "the character of the Presidency is
passing through a transitional state." "We know what the office is
now," he said, "and what use must be made of it; but we do not know
what it is going to work out into." He added that "the present position
of the Presidency in our actual system, as we use it, is quite abnormal
and must lead eventually to something very different." What has Mr.
Wilson contributed toward the correction of the abnormalities he so
recently observed? How has he facilitated the transitions which he
deemed so desirable? The answers lie in the record which all of us
have studied with unusual care as it unfolded, because of our tremendous
concern in it.
II.
President Wilson's relations with Congress constitute the most inter-esting
chapter of our study, in so far as interest depends on new de-velopments.
The President's conception of his prerogatives at the south
State Literary and Historical Association. 37
end of Pennsylvania Avenue lias created a stir more than once among
those members of the l^ational Legislature who stand for precedent and
the established order. That Mr. Wilson would be exceedingly "pro-gressive"
in his relations with Congress was foreshadowed a few weeks
before his inauguration March 4, 1913, when Mr. Samuel G. Blythe
announced in the Saturday Evening Post that the President would per-sonally
address joint sessions of the House and Senate instead of trans-mitting
long messages from the White House to be read separately in
each assemblage. The ISTational Capital seethed with comment, some of
it caustic, as soon as the Saturday Evening Post article was read. I
remember that the incident occurred soon after it had become known
that Mr. Wilson had turned down an invitation to join the fashionable
Chevy Chase Club, and that the two incidents coming so close together
served to develop the opinion among Washingtonians content with
Washington as it then was that they had a Tartar on their hands.
The President verified Mr. Blythe's announcement at the first oppor-tunity.
As soon as he was fairly settled in the White House he called
a special session of Congress to revise the tariff in accordance with
Democratic pledges; and when Congress met he arranged for a joint
session in the hall of the House of Representatives to listen to an ad-dress
from the President. Announcement of the President's intention
to address the Congress brought a great crowd to the Capitol. The de-mand
for seats in the House galleries was greater than at any time
since the Spanish-American war. With characteristic promptness. Presi-dent
Wilson stepped into his automobile at the White House just eight
minutes before 1 o'clock, the hour at which he had asked the two Houses
to meet. Coolly and naturally he drove to the Capitol, accompanied by
his private secretary, who carried a packet of half sheets of note paper
upon which the message had been printed. With every appearance of
naturalness, he proceeded to the House side of the Capitol and to the
Speaker's ofiice. There he met a committee of the House and Senate,
who were very much ill at ease, and permitted himself to be escorted
onto the floor.
The President's reading of his message and his announced intention
to make it customary provoked a discussion of the general subject of
the relationship between the Capitol and the White House. The Capitol
began to buzz. Such sticklers for custom as Senator Lodge talked freely.
Their interviews related to the precedents against the President appear-ing
in person to deliver his message, and brought out the information
that while Washington and Jefferson had resorted to the practice it had
gone out with the latter and no later President before Mr. Wilson had
revived it. Other Senators pointed out that there had been a purpose
38 Seventeenth Annual Session
in the minds of the fathers of the Government in establishing the Capi-tol
Building and the President's residence at opposite ends of Washing-ton's
broad thoroughfare. I remember well, too, the pleasure which
the late Senator Bacon of Georgia, chairman of the Senate Committee
on Foreign Relations, seemed to take in calling attention to a passage
in the diary of Senator McClay of Pennsylvania who told of the dis-pleasure
aroused when General Washington sought to i^articipate in an
executive session of the Senate to defend a proposed Indian treaty. The
scene was so stormy, according to McClay, that President Washington
absented himself from the executive session never to attempt another
visit.
These little outbursts did not serve to deter Mr. Wilson from trying
out another plan which he had in mind for acquiring greater influence
with the Congress. He recalled that there was a President's room just
outside the ante-chamber of the Senate. He conceived that this room
might be used to greater advantage than had been derived from it by
his predecessors, who simply visited it on the last night of each session
of Congress to sign bills. The President decided to use the room for
conferences on pending legislation with members of both Houses of Con-gress.
He did appear there a few weeks after his first address to the
Congress and conferred on several measures then in process of formu-lation.
The stir which followed was even greater than his address had
aroused. The precedent broken was one even more highly revered. It
was an invasion of the sanctum of the Senate. Most of the Senators
openly resented it.
As we study these developments, however, in the light of four years
experience we see that their significance was overestimated at the time.
Both visits to the Capitol were designed to get the country's ear for the
President, and they served him no further. Of course, when he over-turned
a precedent, properly announcing his intention to do so in ad-vance,
and appeared before a joint session of the Congress, he not only
assured himself of the undivided attention of each legislator, but he
had every thoughtful citizen in the country hanging on his words. It
Was just what he desired, and all that he got.
The House listened, unawed but interested. It was not so difficult
for Mr. Wilson's message to hold their attention as had been the case
with other Presidential messages. Mr. Wilson's was the length of a
short speech, whereas, dealing trenchantly with broad aspects of policy,
each of Mr. Taft's annual messages was a great compendium of detailed
statements which were furnished by the heads of Federal departments.
These messages used to be written by Cabinet officers and assistant Cabi-net
officers as well, and I know at least one newspaper correspondent in
State Literary and Historical Association. 39
Washiugton who had the honor to write a part of a message delivered
by one of our recent Presidents. Of course, these long messages, which
were read unintelligibly by the clerk of the House and the secretary of
the Senate, were not listened to, and were not even read afterwards by
many persons except students and newspaper editors.
Similarly, the President exerted no important new influence at the
President's room at the Capitol which he did not have in his study at
the White House. It was good advertisement for Woodrow Wilson,
who stood in need of being humanized and definitely outlined in the
public eye, and it was good advertisement for the measures which he
discussed up there. But that was all. His arguments had no potency
peculiar to the place, except that the Senators and Congressmen who
Avere invited in felt flattered, and therefore were more accessible to the
President's views. As a matter of fact, it can be said of both of these
customs established by Mr. Wilson, that neither placed in his hands a
surely effective instrumentality for swaying the Congress, nor assured
him of a measure of influence greater than his OAvn character established.
Mr. Wilson's most effective means of exerting his influence on Con-gress
has been in White House conferences with the members of the
House and Senate committees entrusted with the formulation of the
measures which he desired to shape. It is hardly an exaggeration to
say that the essentials of every important measure on which the record
of the Democratic Congresses of the past four years was made were
fixed in President Wilson's office at the White House. This was made
apparent during the formulation of the Underwood-Simmons Tariff
Law. The President had many conferences with Senator Simmons of
I^orth Carolina and Majority Leader Underwood of the House and
with other members of the Ways and Means Committee of the House
and the Finance Committee of the Senate. He deliberated with them
as to the schedules of the law which would best fulfill Democratic
pledges, sought their views, and subjected them to the closest scrutiny
from every angle. Then he made up his own mind and proceeded to
get his decision accepted by the Democratic leaders.
It chanced that no spectacular divergence of opinion arose until the
wool and sugar schedules were taken up. The President was convinced
that Secretary of State Bryan's views that sugar and wool ought to go
upon the free list were correct. Majority Leader Underwood, on the
other hand, held that the Democratic campaign pledge not to destroy
any industry by its tariff revision should protect the sugar industry of
Louisiana from the disasters of free trade, and that the necessities of
competition did not demand that all the revenues derived from the
tariff on wool should be abandoned. The President refused to recede
40 Seventeenth Annual Session
in eitlier case, altliougli lie did permit himself to be persuaded by Demo-cratic
Irrational Committeeman Robert Ewing, of Louisiana, tliat tbe
Louisianians deserved a period in wliicb to prepare themselves for the
removal of all duties on sugar. Mr. Underwood surrendered his convic-tions
to the President's for the sake of the party welfare, and so it may
be said that President Wilson had a more important part in determin-ing
the character of the tariff law signed by him than had been given
any recent President. His effective assertion of his O'^vn Adews con-trasted
strikingly with Mr. Cleveland's veto and with Mr. Taft's accept-ance
of Payne-Aldrich Law.
Formulation of the Currency Bill, the Anti-Trust Law, and the other
important measures embodied in the record of achievement upon which
the Democracy appealed to the country's favor in the recent election
produced repetitions of the incidents surrounding the writing of the
Tariff Bill. The Washington correspondents found that the "leads" of
these stories often came from the White House, and that if the Presi-dent's
will could be ascertained the outcome was fairly certain.
The series of instances in which the President's will was sought to
be inflicted upon Congress was climaxed in 1914, in his successful fight
for the repeal of the provision of the Panama Canal Act exempting
American shipping from the payment of tolls. A House of Representa-tives
controlled by the Democrats had passed this exemption. The
Democratic ISTational Convention which nominated Mr. Wilson for the
Presidency had adopted a platform committing the Democracy to the
exemption. Mr. Wilson decreed from the White House, however, that
the party position should be reversed and that the exemption should be
repealed. This incident was unprecedented in the history of American
politics since the advancement of the party system. The President did
not make a full public explanation of his position. The reasons given
in his message demanding the repeal were those relating to N^ational
honor and the necessity that America should not permit any question
to arise about her willingness to abide by treaty obligations. Undoubt-edly,
Mr. Wilson had the conviction that the Hay-Pauncefote Treaty
did obligate the United States to operate the canal without partiality to
her own shipping. Another interesting consideration said to have been
in his mind at the time touched the controversy then being carried on
between the United States and Japan over the Alien Land Law of Cali-fornia.
It was said that Great Britain, although Japan's ally, had
signified to the United States that she would not support Japan in a
war with the United States, provided the tolls exemption were repealed.
That may or may not have been idle gossip, but it is a fact that Admin-istration
leaders in both Houses of Congress made effective use of hints
State Literary and Historical Association. 41
that grave complications in our foreign affairs might be avoided by the
repeal. Some of the Administration workers did not scruple either at
tactics more open to question than this. For instance, it was said that
Congressman Kitchin of I^orth Carolina, then slated to succeed Con-gressman
Underwood as majority leader, was threatened by an Adminisr-tration
official with the President's opposition to his selection if he held
out against the repeal. I may say in passing that the same report of
the incident conveyed the information that Mr. Kitchin made just the
defiant reply to this threat which his friends consider it deserved. It
is believable, also, that the President's friends made profitable resort
to intimations of acceptable distributions of patronage in the tense
period when the outcome of the fight in the House hung in the balance.
The President was not adamantine, however, in his policy of guiding
Congress. His position was that he should have the largest voice in all
party councils. This did not preclude, of course, consultation with the
other party leaders and concessions on his own part where differences
arose. In most of his experiences with the Congress leaders the Presi-dent
has made his fight before the measure involved was brought out on
the floors of Congress for a vote. Except in a very few instances, he
has been guided by expediency in his dealings with the Congress leaders.
He would try as best he could to get them to accept his views, but if he
failed he did not resort to the executive veto.
Mr. Wilson has vetoed few important measures. His two vetoes of
the Immigration Bill, which would apply an educational test to immi-grants,
scarcely count, for both incidents were more or less political
claptrap. In each case Congress passed the measure in the expectation
that the President would veto it. The members passed it because they
washed to go on record as favoring the popular educational test, whereas
the President, whose views on immigration had been cited against him
in the 1912 campaign, was willing to take his chances politically with
the veto.
A time came in the first year of the administration when many of
the President's friends who held out for ideals as against political expe-diency
prayed that he might exercise his power of veto. It was when
the Congress embodied a provision in the Legislative, Executive and
Judicial Appropriation Bill exempting labor unions from antitrust pros-ecutions
under a special appropriation for the enforcement of the Sher-man
Law. The President failed to veto it. The explanation has been
advanced by persons having a confidential relationship with the Admin-istration
that the President had given his word to certain House leaders
to sign the measure at a time when he did not fully understand its sig-nificance,
and that later he preferred to incur the possibility of criticism
42 • Seventeenth Annual Session
than go back on his agreement. The explanation which has widest
currency, however, and greatest plausibility also, is that the President
was willing to make almost any sacrifice in order that no obstruction
might be placed in the way of the tariff bill and the currency and anti-trust
measures which it then seemed would constitute the body of the
Administration's legislative achievements.
The broadening of the President's influence over Congress has had
one inevitable result : the importance of the majority leadership of the
House has been greatly diminished. The President's laying hold of
much of the influence which the majority leader or the Speaker formerly
wielded has been facilitated by the fact that Mr. Kitchin, the ]3resent
majority leader, often found himself compelled by his convictions to
oppose the administration. Mr. Kitchin, out of consideration for the
party welfare, in practically every one of these instances, consented to
vote merely as an individual and not to attempt to organize a fight
against the President.
III.
It is as the leader of his party that the President has controlled Con-gress.
His dealings with Congress have had no taint of that privacy
which at times has impaired the public confidence in representative
government. His councils with the Congress leaders have been partisan
councils and no effort has been made to conceal their character. Except
in times of crises when the full Committee on Foreign Relations of the
Senate was invited to the White House, the men consulted by the Presi-dent
were the Democratic members of committees framing or handling
legislation whom the President considered it proper for him to guide.
The President's power in his party increased as the months of his
first administration rolled by. It was climaxed very naturally in his
dominance of the Democratic N^ational Convention at St. Louis. I^o
other national convention was ever more completely mastered by a single
man, for the simple reason that no such body could be more completely
mastered. The President selected the temporary chairman and the
chairman, and had them submit their speeches to him for review. He
selected the men to write the platform and outlined some of the most
important ideas to be embodied in it. He sent Secretary of War Baker
and Secretary of the ^avy Daniels to St. Louis to act as his personal
representatives in the convention and upon the platform committee. All
important developments at the convention were shaped by the President
through his personal representatives. The most important plank of the
platform, that on Americanism, was written by one of the President's
advisers and telegraphed to St. Louis by the White House after the
State Literary and Historical Association. 43
convention had assembled. Strong objections were voiced to this plank
by Democratic politicians, who did not think it would be wise for them
to" lay the lash upon the hyphenates. INTo one dared gainsay the Presi-dent
openly, however, for there were ominous reports from Washington
that if the platform committee rejected his Americanism plank he would
go to St. Louis and personally call upon the convention to sustain him.
xllso it was said that the President would repudiate his party platform
if it did not accord with his convictions on Americanism. In one other
matter the President inflicted his will upon the party organization for
their mutual benefit. He decreed that neither the platform nor the
speeches of the officers of the convention should make reference to the
issue of involving the judiciary in politics, which was then being raised
against Mr. Hughes. This overruled the views of important Democratic
leaders, as did the President's stand for a suffrage plank.
High as he has placed the prerogative of party leader, the President
has evinced a still greater regard for his place as spokesman of the
nation in matters which concern the national welfare. This role he has
assumed not only in times of international crisis, when the whole coun-try
was supposed to hold up the hands of the President, Mr. Roosevelt's
admonitions to the contrary notwithstanding, but also in time of domes-tic
crises, such as the recent controversy between the railroads and the
operatives' brotherhoods when a calamitous national strike was immi-nent.
A very impressive occasion of this sort came when the President
applied himself upon the stump last spring to the task of convincing
the nation that need existed for enlarging our instrumentalities of
national defense. The President was intent then on getting a bigger
army and bigger navy program through Congress. His own party was
divided, so he set out to prevail upon the rank and file voters of the
country of both parties to compel their representatives in Congress to
support the bigger defense movement.
The President's successes in extending his powers as party leader and
spokesman of the nation and his influence over Congress have a common
explanation. They result, first, from his personal characteristics ; the
Presidency has ever been a powerful office for a Jefferson, a Jackson,
or any other man of high spirit and imperious will. The other cause
of his success has been the effective way in which he has mobilized the
power of his office against those who stood in his way. Wot only has
he devised new means of doing this, such as his addresses to Congress
and his practice of writing letters for publication; he has had frequent
access to the opinion of the nation by a speech-making which amounted
to an appeal over the heads of the members of Congress to the source
of their representative power. Mr. Wilson's manner of doing this has
44 Seventeenth Annual Session
been effective in establishing bonds between bim and tbe electorate. It
is true, I tbink, tbat in many sections of tbe country the people them-selves
seem sensible of a more direct relationship with the Presidency
than they had thought existed before. Mr. Wilson's practice has been
to foster these ties. He has expressed his great interest in the thoughts
of the common man as a source of guidance for him in time of crisis,
and has sought to increase the number of citizens capable of sitting down
and writing really valuable letters to the Chief Executive in time of
stress. He has tried to develop an intimacy with "the silent men who
watch public affairs without caring too much about the fortunes of
parties."
There you have the source of the President's power. Mr. Wilson is
a man of great affability and a great power of persuasion, and exerts a
considerable influence by personal contact with Congressmen and Sena-tors,
although many of these have no real affection for him. Most of
the would-be recalcitrants, however, follow his leadership because they
fear his influence with their constituencies and they v/ant to profit by
this influence. There was a time, not long distant, when resentment
against Mr. Wilson's attempted domination of Congress reached a high
pitch on both sides of the Capitol. The evidence of this resentment had
all vanished before election day, however. It may be that the feeling
was smothered, or it may have died out. It is nearer the fact to say
that the Congressmen gradually waked up to the fact that Mr. Wilson
was stronger than his party, and that their most profitable role would
be that of his warm supporters.
IV.
Mr. Wilson once wrote : "What we need is harmonious, consistent
party government, instead of a wide dispersion of functions and respon-sibility;
and we can get it only by connecting the President as closely
as may be with his party in Congress. The natural connecting link is
the Cabinet."
At another time he said : "It may be that the new leadership of the
executive, inasmuch as it is likely to last (he was speaking of the promi-nence
into which Mr. Cleveland had been brought by his direction of
foreign affairs in his second term), will have a very far-reaching effect
upon our whole method of government. It may give the heads of the
Executive Departments new influence upon the action of Congress."
In accordance with these ideas Mr. Wilson as a student of our govern-ment
subscribed to the view that cabinets should be made up largely of
party leaders.
Mr. Wilson, in office, however, has chosen to establish direct contact
with Congress rather than to utilize the possibilities of the Cabinet as
State Literary and Historical Association. 45
a "connecting link." He lias been his own spokesman on practically
every important political occasion. The conviction is clear in my mind
that he subordinates partisan influence to administrative ability in his
present conception of Cabinet efficiency. Shortly after his reelection,.
Mr. Wilson made the significant statement that he was satisfied with his
Cabinet, that he regarded it as a team that had been tested. Apparently
he was not disheartened by any seeming dearth of meteoric players nor
inclined to repeat an effort to utilize the services of a distinguished
party leader like Mr. Bryan.
The President has not extended the power of his Cabinet beyond that
vested in previous cabinets. He has not encouraged his official advisers
to communicate important recommendations directly to Congress as
Postmaster General Hitchcock did his recommendation for Government
ownership of telephones during the Taft administration. Secretary of
War Garrison sought, in 1914, to forge ahead of the Administration in
the matter of army policy, but in doing so he opened the way for his
withdrawal from the administration, l^o other Cabinet officer has emu-lated
him on a very important matter of policy.
Cabinet officers have participated in practically all of the White
House conferences at which legislative policies were formulated. For
instance. Secretary of the Treasury McAdoo was consulted when the
Tariff Law and the Currency Law were being framed, and dealt directly
with the Committee on Banking and Currency, and Mr. McReynolds,
the former Attorney-General, was called in when the antitrust laws were
being prepared. These officers were present at the White House meet-ing,
however, merely as advisers, and they exerted no influence in the
conferences which they could not command by the intrinsic merit of
their arguments.
The President's relations with many of his Cabinet officers have no
high personal coloring, for he at times will go for weeks without seeing
one or more of them. His attitude in this respect is indicated by the
fact that in periods of crises, as well as at times of important develop-ments
in connection with the legislative program, the President has
suspended Cabinet meetings for weeks at a time.
The President has kept in close touch with important administrative
problems which the executive departments have been called upon to
handle, and has not scrupled at an effort to influence the Government
commissions in the evolution of their important policies. His para-mount
influence with the departments has been disclosed by his custom
of reviewing the plans of the Attorney-General with respect to great
antitrust cases. Two instances of the latter which have been widely
discussed were the intimation to the Interstate Commerce Commission
46 Seventeenth Annual Session
of the President's views regarding the noted 5 per cent rate case, and
his letter to Secretary of the Treasury McAdoo suggesting that the Fed-eral
Reserve Board authorize the establishment of joint agencies of the
Federal Reserve Banks in South America. At least one member of the
Interstate Commerce Commission is said to have been highly incensed
at the President's attitude toward the Commission during the considera-tion
of the 5 per cent rate case, and the Federal Reserve Board gave out
a public statement announcing its decision not to carry out the Presi-dent's
recommendation. The President paid his respects to Govern-ment
commissions in a speech at St. Louis in the spring of 1916, in
which he said : "It is very interesting how important men feel after
they get on a Federal board. They are thereafter hardly approachable.
They are jealous of nothing so much as being spoken to too familiarly
by the President, who seems to be regarded as some sort of suspicious
political influence."
To those members of the Cabinet who have yielded the obedience
which the President regards as necessary to team work, he has returned
an almost paternal loyalty. More than a year ago, when the Secretary
of Commerce, Mr. Redfield, was under fire, because of his conduct of
the Government's investigation of the Eastland disaster at Chicago, the
President stood firmly by him. At another time, when the agitation
against the Secretary of the l^avy, Mr. Daniels, was at its height, the
President declared in a private conversation : ''By God, he shall stay
here as long as I do."
Y.
Mr. Wilson's direction of our foreign policies during his administra-tion
was not an original exercise of the Presidential prerogatives. He
has fully asserted his function in regard to foreign relations, but so did
every other President whose tenure of the White House witnessed im-portant
international complications. His dominance of the State De-partment
has been interesting, however, because of its singular com-pleteness.
In the early stages of our difliculties with Germany, the saying had
currency in Washington that Mr. Bryan's only contribution to the im-portant
notes he signed were his signature and the address, "Gerard,
Berlin." It has been evident since Mr. Bryan's withdrawal and the
appointment of Robert Lansing to the Premiership of the Cabinet that
the President considered it more important that the State Department
should furnish him with information as to actual developments in
foreign affairs and as to precedents and proper diplomatic phraseology
than that it should advise him upon fundamentals of policy. The say-
State Literary and Historical Association. 47
ing that Mr. Wilson has been his own Secretary of State has more than
a grain of truth in it, although this statement would be unfair if it
conveyed any reflection upon the ability or splendid purposes of Mr.
Lansing.
The President has never consulted Congress on an important measure
of foreign relations. He has addressed the Congress repeatedly on the
Mexican situation and twice on our relations with Germany. But these
addresses were largely statements of fact and reports as to what the
President had done, or had decided to do. They were not bids for ad-vice.
Also he has called the Senate Committee on Foreign Relations
and the leaders of the House Committee on Foreign Affairs to the White
House, but for the same purpose. In nearly every case his mind already
had been made up and the Senators listened to the President.
The guidance to which the President has submitted in directing our
foreign relations has been that of public opinion. He does not hold
with those European conservatives referred to by Mr. G. Lowes Dickin-son,
who consider diplomacy a finished science closed to the influences
of democracy. On the other hand, he quite clearly has attempted to
accord his policy toward Germany with the purposes of the body of the
American people. Mr. Wilson has proclaimed his belief in the existence
of the composite mind of the ISTation. He has defined the obligation of
public servants to grasp unexpressed thoughts and unuttered aspirations
in the formulation of their policies. "The voice of America'' is a phrase
frequently upon his lips. And the same disposition to attune his foreign
policy to the composite thought of his constituency is reflected in certain
speeches in which he has asserted that it is the obligation of the new
statesmanship to give a new warmth and human coloring to the hitherto
cold and colorless relationships between one nation and another.
The influence I am trying to indicate is somewhat diflicult to detect in
all of Mr. Wilson's foreign policies. One might easily be content with
the acceptance of the statement that he was guided throughout the Lusi-tania
correspondence by the knowledge that the bulk of the American
people desired to remain at peace. That disposition was fairly easy of
ascertainment to a man with ordinary facilities for determining popu-lar
feeling. On the other hand, it is much more diflicult to demonstrate
that Mr. Wilson has had the public abreast of him at every stage of our
relations with Mexico. With no desire to revive any of the partisan
feeling of the recent campaign, I do feel justified in saying that there
have been times when there seemed at least a close division among the
American people as to whether it would not be better for the United
States to send an army into E'orthern Mexico to insure settled condi-tions
there in the future. The conclusion might be drawn from this that
48 Seventeenth Annual Session
in respect to Mexico Mr. Wilson had attached more importance to his own
convictions than to public opinion. It might also be concluded that he
was depending upon cloudy media for observations as to the state of
public opinion. The better conclusion, however, and the one in which
I have complete confidence, is that the President considers it equally
his duty in respect of foreign affairs to be guided by the steady currents
of national thought as he conceives it and to be impervious to unsteady
popular clamor. Thus he was responsive to the demand for the preser-vation
of peace with Germany, while he could not be influenced by the
widespread desire to have our army inflict peace on Mexico.
YI.
From the foregoing resume of what Mr. Wilson has done, we may pro-ceed
with justifiable confidence to an appraisal of his contribution to
the science of government. He has expedited the evolution of the Presi-dency
as a party leadership demanding statesmanlike qualities. That
is his outstanding contribution. Pie has made of the Presidency the
unifying and harmonizing factor in a not too well organized govern-ment.
That is the thing he has done which makes the Presidency a
somewhat different kind of office for his successors from what it was to
those who preceded him. He has gathered into the hands of the Chief
Executive more of the actual prerogatives of party leadership than
formerly were conceded to him. His administration has had nothing of
that ^^separateness" from Congress for which he criticised the first
Cleveland administration, and which would have characterized Mr.
Hughes's administration if we are to accept at face value his statement
that "The President is primarily an executive; it is his supreme duty
to attend to the business of the N"ation, to safeguard its interest, to
anticipate its needs, to enforce its laws." "My conception of the Presi-dency,"
said Mr. Hughes, "differs absolutely from Mr. Wilson's. I look
upon the President as the administrative head of the Grovernment. He
looks upon the President as primarily the political leader and the law-maker
of the JSTation." The President has been and will be held respon-sible
for every large matter in Washington. The country will look to
his office more and more to accept this responsibility. Mr. Wilson has
seen to it that the office should possess the power which goes with the
responsibility.
In thus shaping the Presidency, Mr. Wilson has followed up the line
of development discernible in our political history. Changes have been
made in our government, some by constitutional amendments, and
others, such as that in the method of electing the President, without
altering the Constitution. Further changes are predictable from the
State Literary and Historical Association. 49
character of what already has been done. Mr. Wilson has said that the
President "must be Prime Minister, as much concerned with the guid-ance
of legislation as with the just and orderly execution of law," and
"the spokesman of the ISTation in everything, even the momentous and
most delicate dealings of the Government with foreign nations.'' Sooner
or later he believes it inevitable that the President will "be made answer-able
to opinion in a somewhat more informal and intimate fashion."
It is clearly evident that this change will be worked out in true Ameri-can
fashion and recognized in the Constitution only when the popular
conception of the Presidency has advanced further along the lines laid
down by Mr. Wilson. The powers of the party leadership will be still
further enlarged so that the Presidency will be more than ever the in-tegrating
factor in what Mr. Wilson earlier referred to as the "disin-tegrated
structure" of our Government. Thus the [N'ation will avoid
"the pinch of disadvantage" which, according to Mr. Wilson, "must
sooner or later result from the singnilar division of our Government into
groups of public servants looking askance at one another." Thus it will,
to quote Mr. Wilson again, "substitute statesmanship for government by
mass-meeting."
The logic of our conclusion as to this phase of Mr. Wilson's work, it
seems to me, has no relation to our estimate of the foreign and domestic
policies for which he has been praised and criticised. Divergencies of
view as to the practicability and honorable character of his foreign and
domestic policies should not deter us, as they will not the historian, from
an appreciation of the wholesome development he has accelerated in our
governmental system. Progress in the direction in which his adminis-tration
has pointed the Government will bring democracy at last into
the very sight of its hope : efficient representation.
50 Seventeenth Annual Session
A New Epoch
By William Thomas Laprade.
It is not given to many generations to witness the passing of an epocli.
But every well-informed adult now alive knows that the past several
years have brought transformations almost too vast to be comprehended.
This year seems scarcely akin to 1913, and the next few years seem to
offer insuperable difficulties to any attempt to fathom them. If you
wish to get an impression of the changes now in process try to recall
your point of view three years ago. Better still, examine the files of the
daily and weekly press of that time. You will find yourself in another
world with strange questions, a vast ignorance, and petty quarrels. You
will find it hard to convince yourself that the same persons who are
living in these heroic years expressed themselves in that paltry language.
I know of only one other time in modern history that, in this respect,
can be compared with our own, namely, the early years of the French
Revolution. The newspapers, the contemporary memoirs, the pamphlets,
and the private letters of that time bear testimony that those who pro-duced
them were conscious that their day, like our own, marked the end
of one epoch and the beginning of another. They were not clear as to
the character of the past or as to what the future was likely to bring
forth, but they were convinced that at any rate the future would be
different.
Since this is a time of transition and heart-searching it would seem
to be appropriate to recall some of the characteristics of the epoch in-troduced
by the French Revolution which now seems to be passing, and
to see whether it is possible to look with any degree of plausibility into
the future.
We shall probably agree that the nineteenth century as an epoch in
history got fairly under way in 1814 on the fall of I^ai^oleon, and cul-minated
in the outbreak of the present war. If there were time to delve
further into the past we might observe that by a curious coincidence
there were also precisely an hundred years between the Congresses of
Utrecht and Vienna. But we shall only note briefly the chief character-istics
of the century introduced by the latter congress.
The first characteristic which attracts our attention is connoted by a
word now never long absent from the lips of a student of history. The
nineteenth century was preeminently the time of the growth of nations
with a unity of feeling and institutions. There is no need to call the
roll of the countries that passed through that experience. It would be
State Literary and Historical Association. 51
easier to name those that did not. But if the nineteenth century was a
time when the nations grew up from dynastic infancy to self-conscious
political life, it was also a time when the doctrine of individual liberty
as a political ideal received widespread acceptance. In some of the
countries the struggle for liberty and for national unity went hand in
hand. Cavour, for example, cherished a desire to introduce into his
own beloved land both of these ideals, which had been inspired in him
while he resided in the country that was the mother of nations and the
fountain of liberty. And if liberty was finally defeated in the develop-ment
of the German nation it was not because it lacked champions, as
witness the migration of German liberals to this country after their
defeat at home.
Trained in the old school, as most of us are, we have no difficulty in
reconciling these two ideals with all that seems desirable in social life.
It is when we meet the third characteristic in the development of the
nineteenth century that our troubles begin. Excuse it as we may, the
fact is that this century of exuberant national life and zealous pursuit
of liberty was likewise the century in which the strong men of the
nations were most successful in exploiting the weak and in accumulating
and managing in their own interest the fruits of the labor of the less
fortunate. This fact is no less evident if we admit that under the regime
of these strong men has occurred more rapid advancement toward that
vague goal we call civilization than in any other interval of comparable
length in human history. x\.t any rate, in no other century were the
strong men able to work so effectively or to accomplish so much. More-over,
in no other century were the weak, despite their individual liberty,
made more utterly dependent on the strong.
Very little reflection will serve to make it clear that a community
which is striving toward individual liberty as an ideal is laboring to
make it easier for the strong to exploit the weaker. It was the mistress
of the seas, a nation already head and shoulders above her rivals in in-dustry
and commerce, that threw down the gauntlet in the nineteenth
century and challenged the world to adopt a policy of liberty in trade.
And the battle for individual liberty in the past several centuries was
largely fought at the instigation of the strong men of the growing-nations,
who were anxious to throw off the fetters imposed on their
activities by the outworn forms and petty tyrannies of a past age.
The nation itself was largely a by-product of this struggle of the
strong men for an opportunity to exert their strength. In one sense
England got rid of the Stuarts and France the Bourbons in order to
give the strong men control. In Germany the ruling house profited by
the example of other families that had lost power or office, or both.
52 Seventeenth Annual Session
formed a partnership with the strong men of the nation, and cooperated
with them in the task of exploiting the weak. Thus that which the
strong men of the liberty-loving nations did as a right those of Ger-many
did as a privilege. The result was similar in many respects, the
chief difference being that Germany never became a home of liberty.
A little study of the nation makes it clear that, with the average level
of education and general intelligence what it was in the nineteenth cen-tury,
it would have been difficult to invent a contrivance better adapted
to serve the purposes of the strong men. The inhabitants were merged
into a fictitious personality, were provided with proper shibboleths, and
were taught to recognize a code of national honor similar in many
respects to the code prevalent among gentlemen when dueling was in
fashion. Their former loyalty to their clan or to their leader was trans-formed
into an enthusiasm for this complex unity of which they some-how
felt themselves constituent parts, but which tended to blind them
to merits of the question. If they reached a point where it seemed to
be theirs to reason why they but repeated parrot-like arguments made
ready for the occasion by the strong men or the employees of the strong
men who constituted the brains of the fictitious person. If they did
now and then decide questions by their votes they were questions made
ready by some group of these same strong men who also supplied the
reasons for voting one way or another. By this arrangement a member
of the multitude came to feel it a greater obligation than before to spend
himself in support of the honor of this nation of which he felt that he
was a member. It is not remarkable, therefore, that J^Tapoleon, with a
nation at his call, could accomplish greater things than Louis XIV.,
who after all was but a dynastic monarch. I^or is it remarkable that
the nations now at war are striving in a combat which beggars descrip-tion
and which makes all former wars insignificant by contrast.
My chief reason for making these observations is because they seem
to me to betoken something of the future. If I have read history aright,
the ideal of liberty and the conception of a nation which gradually
emerged in the seventeenth and eighteenth centuries, and which, in the
nineteenth, gave the strong men an opportunity never before afforded to
them, is now in a process of transition to another stage in the evolution
of human society. As the nineteenth century may be regarded as the
century of nationalism and liberty, so, it now seems likely, the twentieth
may come to be known as the epoch of democracy and justice. If this
be the true view, the comparatively small groups of strong men who,
under a regime of liberty, were able to build nations and to shape
national policies to their own advantage will yield to a social system
dominated by the mass of the people largely in their own interest.
State Literary and Historical Association. 53
It is tolerably clear that such a change would tend to curtail the
liberty of individuals. ^Nothing is more familiar to thoughtful persons
than the practical antithesis between democracy and liberty. But the
terms have been so frequently married in the loose phraseology of our
public discussions that the less careful think of them as almost comple-mentary,
and a word of emphasis on the distinction is not out of place.
The point is that the more completely the mass of the people come into
a realization of their real potency in producing the wealth and fighting
the battles of the world the less inclined they are to abide by the old
doctrine of laissez faire. Of course, even those eighteenth and nine-teenth
century enthusiasts who thought the least governed people to
be the best governed were far from believing in absolute liberty, but
they w^ere convinced that it would be for the advantage of society to
give a wide latitude to individual activity. The democrats, on the other
hand, know that if liberty is in vogue to this extent, particularly in the
economic world, the strong men will increase their strength, too fre-quently
at the expense of the weak. And so it is a natural tendency of
the more numerous weak, when they awake to the situation, to organize
themselves for the purpose of bidding defiance to the strong, even though
it is necessary to give up somewhat of their liberty in so doing.
This clash of democracy and liberty is apparent in the opposition to
child-labor legislation, compulsory school laws, factory legislation, and
the like. Whether one agrees with the supporters of these measures or
not,

tX')''^'^ ^'^' 2.'2.
PROCEEDINGS
OF THE
SEVENTEENTH ANNUAL SESSION
OF THB
State Literary and Historical Association
of North Carolina
RALEIGH
December 5-6, 1916
Compiled by
R. D. W. CONNOR
Secretary
RALEIGH
Edwards & Broughton Printing Co.
State Printers
1917
h^-^ iw /c^t ^ /S*.
The North Carolina Historical Commission
J. Bryan Grimes, Chairman, Raleigh.
W. J. Peele, Raleigh. D. H. Hill, Raleigh.
Thomas M. Pittman, Henderson. M. C. S. Noble, Chapel Hill.
R. D. W. Connor, Secretary, Raleigh.
Officers of the State Literary and Historical Association
1915-1916.
President Howard E. RoNDTHALER.Winston-Salem.
First Vice-President Miss E. A. Colton, Raleigh.
Second Vice-President Francis D. Winston, Windsor.
Third Vice-President Henry A. London, Pittsboro.
Secretary-Treasurer R. D. W. Connor, Raleigh.
Executive Committee
(With Above Officers).
J. O. Carr, Wilmington. Clarence Poe, Raleigh.
W. L. PoTEAT, Wake Forest. Mrs. Margaret B. Shipp, Raleigh.
R. B. Drane, Edenton.
1916-1917.
President H. A. London, Pittsboro.
First Vice-President Mrs. Marshall Williams, Faison.
Second Vice-President T. M. Pittman, Henderson.
Third Vice-President Mrs. W. N. Reynolds, Winston-Salem.
Secretary-Treasurer R. D. W. Connor, Raleigh.
ElxECUTivE Committee
(With Above Officers).
J. G. deR. Hamilton, Chapel Hill. E. C. Brooks, Durham.
F. B. McDowell, Charlotte. W. P. Bynum, Greensboro.
A. W. McLean, Lumberton.
PURPOSES OP THE STATE LITERARY AND HISTORICAL ASSOCIATION
"The collection, preservation, production and dissemination of State litera-ture
and history;
"The encouragement of public and school libraries;
"The establishment of an historical museum;
"The inculcation of a literary spirit among our people;
"The correction of printed misrepresentations concerning North Carolina;
and
—
"The engendering of an intelligent, healthy State pride in the rising
generations.'*
ELIGIBILITY TO MEMBERSHIP—MEMBERSHIP DUES.
All persons interested in its purposes are invited to become members of
the Association. There are two classes of members: "Regular Members,"
paying one dollar a year, and "Sustaining Members," paying five dollars a
year.
RECORD OF THE STATE LITERARY AND HISTORICAL ASSOCIATION.
(Organized October, 1900).
Fiscal ^^^^ ^^
Years. Presidents. Secretaries. MemhersUp.
1900-1901 Walter Clark Alex. J. Feild 150
1901-1902 Henry G. Connor Alex. J. Feild 139
1902-1903 W. L. PoTEAT George S. Fraps 73
1903-1904 C. Alphonso Smith Clarence Poe 127
1904-1905 Robert W. Winston Clarence Poe 109
1905-1906 Charles B. Aycock Clarence Poe 185
1906-1907 W. D. Pruden Clarence Poe 301
1907-1908 Robert Bingham Clarence Poe 273
1908-1909 Junius Davis Clarence Poe 311
1909-1910 Platt D. Walker Clarence Poe 440
1910-1911 Edward K. Graham Clarence Poe 425
1911-1912 R. D. W. Connor Clarence Poe 479
1912-1913 W. P. Few
1913-1914 Archibald Henderson
1914-1915 Clarence Poe
R. D. W. Connor 476
R. D. W. Connor. 435
R. D. W. Connor 412
1915-1916 Howard E. Rondthaler R. D. W. Connor 501
1916-1917 H. A. London R. D. W. Connor 521
AWARDS OF THE PATTERSON MEMORIAL CUP.
1905
John Chaeles McNeill, for poems later reprinted in book form as
"Songs, Merry and Sad." (Presentation by Theodore Roosevelt.)
1906
Edwin Mims, for "Life of Sidney Lanier." (Presentation by Pabius
H. Busbee.)
1907
—
Kemp Plummer Battle, for "History of the University of North Caro-lina."
(Presentation by Francis D. Winston.)
1908
Samuel A'Court Ashe, for "History of North Carolina." (Presentation
by Thomas Nelson Page.)
1909
Clarence Poe, for "A Southerner in Europe." (Presentation by James
Bryce.)
1910—R. D. W. Connor, for "Cornelius Harnett: An Essay on North Carolina
History."' (Presentation by T. W. Bickett.)
1911
Archibald Henderson, for "George Bernard Shaw: His Life and
Works." (Presentation by Lee S. Overman.)
1912
Clarence Poe, for "Where Half the World is Waking Up." (Presenta-tion
by Walter H. Page.)
1913
Horace Kephart, for "Our Southern Highlanders." (Presentation by
Maurice G. Fulton.)
1914—J. G. deR. Hamilton, for "Reconstruction in North Carolina." (Pre-sentation
by W. K. Boyd.)
1915
William Louis Poteat, for "The New Peace." (Presentation by
Josephus Daniels.)
1916—No Award.
WHAT THE ASSOCIATION HAS ACCOMPLISHED FOR THE STATE-SUCCESSFUL
MOVEMENTS INAUGURATED BY IT.
1. Rural libraries.
2. "North Carolina Day," in the schools.
3. The North Carolina Historical Commission.
4. Vance statue in Statuary Hall.
5. Fire-proof State Library Building and Hall of Records.
6. Civil War battlefields marked to show North Carolina's record.
7. North Carolina's war record defended and war claims vindicated.
8. Patterson MIemorial Cup.
9. Lecture Extension Work started in leading cities and towns.
10. A program of Library Extension Work begun.
STATE ART COMMISSION.
At the session of the Association in 1915 a committee was appointed to
report to the session of 1916 on the advisability of the State's creating a State
Art Commission. The committee reported the proposal favorably, and sub-mitted
a proposed bill for that purpose. This bill was approved by the Asso-ciation.
It was introduced in the General Assembly of 1917, but failed of
passage. It will again be introduced in 1919. In the meantime the Literary
and Historical Association will undertake to create sufiicient sentiment for
the measure to insure its success.
Contents
PAGE
Minutes of Seventeenth Annual Session 9
President's Address. By Howard E. Rondthaler 12
Edward Livingston. By William H. Taft 19
The President and the Presidency. By L. Ames Brown 36
A New Epoch. By William Thomas Laprade 50
The Sovereign State of North Carolina, 1787-1789. By W. W. Pierson, Jr. 58
Suffrage in North Carolina. By W. S. Wilson 70
History of Crimes and Punishments in North Carolina. By Thomas M.
Pittman 78
North Carolina Bibliography, 1916. By Minnie W. Leatherman 86
Members for 1916-1917 89
Proceedings and Addresses of the State Literary and
Historical Association of North Carolina
MINUTES OF SEVENTEENTH SESSION
RALEIGH, DECEMBER 5-6. 1916
Tuesday, December 5th.
The Seventeenth Annual Session of the State Literarv and Historical
Association of ^orth Carolina was called to order in the auditorium of
Meredith College, Raleigh, IsT. C, Tuesday evening, December 5, 1916,
at 8 :30 o'clock, with President Rondthaler in the chair. After a few
opening remarks, congratulating the Association upon its successful
work in the past. President Rondthaler delivered the annual presiden-tial
address. At the conclusion of the President's address Miss Char-lotte
Ruegger, of Meredith College, rendered a violin solo accompanied
by Miss Elizabeth Futrell. President Rondthaler then presented Mr.
L. Ames Brown, a native of I^^orth Carolina who is now a newspaper
correspondent of Washington, D. C, who read a paper on "The Presi-dent
and the Presidency." At the conclusion of Mr. Brown's paper the
President of the Association announced that the Committee on the
Award of the Patterson Memorial Cup had determined to make no
award for the year 1916.
Wednesday Morning, December 6th.
The Association was called to order in the Hall of the House of
Representatives by President Rondthaler at 10 o'clock. The President
presented Dr. W. T. Laprade, Professor of European History in Trinity
College, who read a paper on "A I^ew Epoch." Dr. Laprade was fol-lowed
by Dr. W. W. Pierson, Jr., Associate Professor of History at the
University of ]N"orth Carolina, who presented a paper on "The Sovereign
State of :N"orth Carolina, 1787-1789." Prof. Collier Cobb, Professor of
Geology at the University of l^orth Carolina, followed Dr. Pierson,
addressing the Association on "Historic Highways in JSTorth Carolina."
At the conclusion of Mr, Cobb's address Mr. W. C. A. Hammel, Chair-man
of the Committee on a State Art Commission, presented the report
of the Committee, which was embodied in a proposed bill for introduc-tion
into the General Assembly, providing for a State Art Commission
of &Ye members to act in an advisory capacity in the acquisition, erec-
10 Seventeenth Annual Session
tion and remodeling of State buildings, memorials, monuments, and
other works of architecture and art. After some discussion the report
of the committee was adopted, and the committee was authorized to have
the hill introduced in the General Assembly, and to act as a steering
committee to secure its passage.
The President appointed a nominating committee consisting of Hon.
J. Bryan Grimes, Dr. R. B. Drane, Miss Mary 0. Graham, Mrs. T. W.
Lingle, and Mr. Marshall DeLancey Haywood.
It was moved and carried that a committee of three on increase of
the membership of the Association be appointed, and the President
stated that he would announce the committee later.
Wednesday Afternoon, December 6th.
The session was called to order by President Rondthaler in the Hall
of the House of Representatives at 3 :30 o'clock. Mr. W. S. Wilson,
Legislative Reference Librarian, read a paper on ^^Suffrage in I^^orth
Carolina." He was followed by Mr. T. M. Pittman, member of the
ISTorth Carolina Historical Commission, who presented a paper on
"The History of Crimes and Punishment in ^orth Carolina." Miss
Minnie W. Leatherman, Secretary of the l^orth Carolina Library Com-mission,
presented a report on ''I^orth Carolina Bibliography for
1915-16." The Committee on JSTominations reported the following
nominations for the year 1916-17
:
Major H. A. London, Pittsboro, President.
Mrs. Marshall Williams, Faison, First Vice-President.
T. M. Pittman, Henderson, Second Vice-President,
Mrs. W. N. Reynolds, Winston-Salem, Third Vice-President.
R. D. W. Connor, Raleigh, Secretary-Treasurer.
The report of the committee was unanimously adopted.
Wednesday Evening, December 6th.
President Rondthaler called the Association together at 8:30 o'clock,
in the auditorium of Meredith College. The session was opened with a
violin solo by Miss Charlotte Ruegger, accompanied by Miss Elizabeth
Futrell. President Rondthaler then presented Governor Locke Craig,
who introduced former President William Howard Taft. Governor
Craig paid tribute to Mr. Taft's qualities of statesmanship and legal
abilities, especially to those acts of his administration as President that
tended to obliterate the sectional feeling between the l^orth and the
South. He characterized Mr. Taft as a genuine and true man, worthy
of the high honors which the American people had bestowed upon him.
State Literaky and Historical Association. 11
Mr. Taft addressed the Association on "Edward Livingston and His
Relations to Thomas Jefferson, John Marshall, and Andrew Jackson."
At the conclusion of Mr. Taft's address the Association adjourned sine
die. Following the adjournment of the Association the Raleigh Woman's
Club tendered a reception to the members of the Association and their
guests, in their club rooms.
12 Seventeenth Annual Session
ADDRESSES
President's Address
By Howard E. Rondthaler.
A summary of the purposes of the State Literary and Historical Asso-ciation
of !N"orth Carolina, as published by the society in 1914, declares
that this Association stands for six well-defined objects, to wit
:
"The collection, preservation, production and dissemination of our
State literature and history.
'^The encouragement of public school libraries.
"The establishment of an historical museum.
"The inculcation of a literary spirit among our people.
"The correction of printed misrepresentations concerning N^orth Caro-lina,
and
"The engendering of an intelligent and healthy State pride in the
rising generations."
It is with the sixth and last of these purposes that I am particularly
concerned in these remarks, and I ask permission to paraphrase this
statement in the following words
:
"That we may learn to think intelligently and with healthy pride in
terms of our own State," and this is nothing else than learning to add
both to our national and local point of view that estimate which gives the
State her full and well deserved place.
This will be recognized as that once, perhaps, over-emphasized point
of view from which we have now too much receded. And it is a strangely
far swing of the pendulum that such a statement could ever in fairness
and truth be made of a considerable, if younger, portion of our I^orth
Carolina citizenship. But then, I submit, is it not a paradox that any
American State so clearly and closely definable as is its legal entity and
so jealously bounded as is its political individuality should at the same
moment be so vaguely and faintly differentiated in its physical charac-teristics
and in its social composition from any of its near-by neighbors ?
1^0 one who has crossed from one European country to another,
especially if he has made the passage on foot, but has been struck by
the instant demarkation. Probably some great natural physical bound-ary
has, in the first place, emphasized that passage; then he has sud-denly
come into an environment of a new language, new customs, per-haps
changed habits of dress, a new coinage, and over all and in con-stant
reminder, a new flag.
State Literary and Historical Association. 13
Is it, perhaps, tliat some of the vagueness and indifference of our
State-thought, especially in these restless days of ceaseless travel and
transit, is due to this elemental geographic difficulty arising from the
meandering, nondescript and inconsistent lines of demarkation which
are supposed to separate us from our sister commonwealths?
With great zest and spirit we speak, and still more we sing, concern-ing
the fair borders of this fair State, but, I submit, we well know the
while we thus sing that in reality our borders are nothing but arbitrary
lines, and that no living man can tell except he keep his eyes fixed upon
some occasional marker when he really is passing from J^orth Carolina
into Tennessee, Georgia, South Carolina, or Virginia.
This State, like most others,—study the map for yourself—blends and
blurs into the next neighbor, and, except for the word of the surveyor,—
-
and history knows how they have quarreled about it—there is no bound-ary
at all. Every day this imaginary line is traversed without let or
hindrance, without challenge or ceremony, without sentiment, conscious-ness
or concern.
J^Tow that delight and distinctness of thought which is so necessary a
constituent of patriotism demands and presupposes a certain fact of
separateness, and the first great destroyer of physical distinctiveness is
this blur of boundary so characteristic of I^orth Carolina.
One may ask in all frankness and in all good affection for JSTorth Caro-lina,
pray what have we which is geographically, geologically (element-ally),
physically distinctive which is really and separately ours and ours
alone ?
Our mountains? But are they indeed in their totality ours? Are
they not first borrowed and then later shared ? Do we not return them
as a sort of loan from one State to be duly passed on to three other
States ?
Our rivers? Are they surely and fixedly ours? Have you, I may say
confidentially, ever considered the extraordinarily unpatriotic and fickle
conduct of our rivers ? Three alone are there—the Cape Fear, the Tar,
and the N'euse—that elect to abide at home in I^orth Carolina where
they were born, bred and brought up. As to the others, no sooner does
the Yadkin grow up and see the chance than she not only deserts us,
but even flaunts her infidelity by changing her very name and with
additional gleeful insult, now that she is once gone from us, suddenly
assumes the very unnecessary adjective "Great" to her new entitlement,
becoming then the Great Pee Dee. The Dan,—well you know what the
Dan does, how she flirts back and forth across the Virginia line, and as
though to hide her inconsistency changes her name, too, in an eleventh-hour
repentance, and in her now slowly declining course becomes at last
14 Seventeenth Annual Session
a returned prodigal Roanoke. The Little Tennessee and tlie fair Frencli
Broad leave us to go westward; and our thirsty neighbor, South Caro-lina,
is almost wholly watered—mind you, ivatered—from E'orth Caro-lina
mountain sources.
What have we, then, both distinctive and separate? Our sand hills
and pine forests ? We share these both to the north and south, with this
exception—that our sister States hid them with embarrassed apologies
until we discovered that sand hills and pine barrens could be made to
spell harvest and health—peaches in the crate and peach bloom on the
cheeks.
Our far-famed and oft-sung climate? Do we net but take this while
in transit from somewhere to everywhere? These whispering winds of
which our poets sing, have they not whispered into other ears ere they
found the ears of N^orth Carolinians? and, departing hence, are they
not but seeking and finding new fields for their gentle, albeit inconstant,
sighings ?
What is our own? The Dismal Swamp? Why even this we share
with Virginia.
'No wonder it is difficult to think with prompt clearness upon such a
widely shared background. And what is more, the very size, and espe-cially
one peculiar dimension of this State, offers a sort of disconcerting
challenge to that mind seeking obedience to the aforementioned sixth
commandment of the State Literary and Historical Association of
J^J'orth Carolina : Thou shalt think of N"orth Carolina with an intelligent
and healthy State pride.
Though not the largest in the sisterhood of States, N'orth Carolina is
not frequently surpassed in size, but what is more to the point, there is
ever that disconcerting peculiarity of one of the dimensions of l^orth
Carolina, i. e., that ungainly diagonal of elongation from northeast to
southwest, which produces a result peculiarly disturbing in an attempt
at concrete and concentrated State-thinking. I^othing could be worse
in this respect, except perhaps a panhandle, for every one who knows
the panhandle States knows how really serious and distracting and un-escapable
an affliction a panhandle is in matters of State solidarity. It
is, therefore, an unescapable item of fact in our State existence that,
whereas we are of such comparatively limited dimensions in the direc-tion
in which most folks want to go and along which they therefore
think, i. e., north and south, we are so awkwardly overgrown in our
chief dimension along the line which trade and traffic are least disposed
to travel and people least accustomed to think. There have been men
—
I myself have known one such—who have journeyed those nearly five
hundred miles from Cherokee to Currituck and have survived. The one
State Literary and Historical Association. 16
I knew always talked about it as an epoch, much as Washington Irving
says men did in his boyhood who had actually been to Europe and back.
Of what, then, do we think when, in the spirit of our sixth associated
duty, we strive to think not more highly than we ought to think, but to
think soberly of dear old N^orth Carolina? Probably, first of all, of a
sort of picture on a map. N'orth Carolina—there she lies—behold her?
N^ow why is it that these map-makers always make N^orth Carolina a
pale green or a feeble pink? Can you imagine any less appropriate
color for a rugged, sturdy, wrinkled old State? But is it not true that
most of us, when we seek to visualize I^orth Carolina, instantly see
either faded green or insipid pink?
Or is our point of view when we "think IN^orth Carolina" a sort of
instant mentally defiant attitude which we have through long experi-ence
come instinctively to assume as of those put on their defensive
and ready with patriotic counter-rejoinder to offset some criticism or
depreciation directed against our State?
Or is it a sort of sweet, lulling, sentimental, gentle, fragrant reverie
into which we instantly drop? Magnolias and moonlight and crepe
myrtles and mockingbirds ?
Or is it that we attempt a confused and hurried review of places and
scenes that we love—a certain town, appealing in its very homeliness;
a certain neighborhood, very quiet and unspoiled; a certain landscape,
gentle, verdant, forest-fringed and overhung with the bluest of skies?
Or is it that we think with a sudden heart-quickening sense of just
folks—folks we know and folks who know us, folks we like and folks
who like us, folks in whom we believe and whom we understand—our
sort of folks, Carolina folks.
Of course if a citizen living within an American State had no especial
reason to come into frequent and vital relationship with his own State
it might be a matter of comparative indifference if his State point of
view were vague and his State sentiment faint, but such is the organic
construction of our American State that in reality we are very definitely
dominated, directed, restrained and controlled thereby. The State, I
submit, is designed to come into most intimately influencing and essen-tial
touch with our daily lives.
"All the civil and religious rights of our citizens depend upon State
legislation ; the education of the people is in the care of the State ; with
it rests the regulation of the suffrage; it prescribes the rules of mar-riage,
and the legal relations of husband and wife, of parent and child
;
it determines the powers of masters and servants and the whole law of
principal and agent, which is so vital a matter in all business trans-actions;
it regulates partnership and debit and credit insurance; it con-
16 Seventeenth Annual Session
stitutes all corporations, both private and municipal; it controls the
possession, distribution and use of property, the exercise of trade, and
all contract relations; it formulates and administers all criminal law,
except crimes against the United States, on the high seas, or against the
law of nations. Space would fail in which to enumerate the particular
items in this vast range of power; to detail its parts would be to cata-logue
all social and business relationships, to set forth all the founda-tions
of law and order." I am quoting the definition of the State as
given some years ago by Woodrow Wilson, a Professor of Jurisprudence
and Politics in Princeton University.^
How could the extent and gravity of our relation to the State be more
tersely and comprehensively set forth ?
Has it perchance been the result of long dinning into our Southern
ears that State spiritedness is unpatriotic—is at variance with national
heartedness—that we see so great carelessness as to the State point of
view? Or is it an extreme tendency to localism, each neighborhood
group so intent upon its own affairs, yea each individual so self-centered,
that the wider relations of life, to wit the State, is a matter of utter in-difference?
Has it perhaps been the hard problem of pruning our own
private vine and cultivating our own private fig tree which has led us to
undue concentration upon our own personal affairs at the cost of a State
mindedness ?
I have often looked down from the pinnacled top of our Pilot Moun-tain,
Surry County, and observed in how many instances each single
farm is clustered about and literally hemmed in with its own separating
forest, so that a man's horizon is daily limited to his own immediate
acres; and I have wondered whether this was perhaps both typical and
explanatory of our prevailingly local point of view.
What, then, may serve to quicken this so desirable a State point of
view? What, then, may contribute to heighten for us an intelligent
and healthy appreciation of our own State ?
Let a ISTorth Carolinian, when he thinks of his own State, learn to
think of her in terms of abiding historic incident and of individual
character and leadership. What a muster roll is ours in historic person,
place, and event ! The ever-kindling story of Roanoke Island and
Virginia Dare; the successive settlements and distinctive influences of
Quakers, Cavaliers, Swiss, Scotch, Scotch-Irish, and Germans; the
Regulator War and the Battle of Alamance, Harvey, Harnett and Inde-pendence,
Mecklenburg and Edenton, Moore's Creek and Guilford, Cas-well,
Ashe, Gates, Green, Davie, Swain, Vance, and Aycock. These and
many others like them, these are ours, and these when known, studied
iThe State, p. 473.
State Literary and Historical Association. 17
and appreciated, tend to foster an intelligent and liealthy State pride.
Let him think of l^orth Carolina in terms of her friendly, well-knit,
neighborly, well-acquainted folks—folks with a unique and special oppor-tunity
to know and esteem one another because free from the domina-tion,
political, social and commercial, of any single city, with its invari-able
overlording, its intolerant attitude and supercilious airs—those airs
and that attitude which in other less fortunate States are so apparent
in the city's smug assurance and rasping intolerance towards the rest
of folks.
This State that obtains its leaders straight from the soil, and where
no one ever dreams it necessary to offer an explanation or an apology
because a man came from a farm or from a village.
While 46 per cent of the total population of the I^ation is urban,
which per cent in Massachusetts runs as high as 92 per cent, and in
!N^ew York as 78 per cent, only 14 per cent of ISTorth Carolina's popu-lation
lives in cities or towns with as many as 2,500 people. Indeed,
all the so-called cities in Korth Carolina if combined would only give
us a Reading, Pa., or a Trenton, 'N. J.
Let him learn to think in terms of a State abounding in that good
foundation fact of the Republic—that is, home life; single households
living as units and each under its own roof. And if he be challenged
on this point, let him assure himself with the fact that of the 450,000
families of ISTorth Carolina only 2 per cent must combine to live at the
unhappy rate of more than one family beneath the same roof.
He who would think of l^orth Carolina, let him think in well justified
terms of her marvelous progress. That his is the State which leads the
Union in the number of cotton mills and factories and in the amount
of raw cotton consumed, and ranks second only to Massachusetts in the
value of manufactured cotton products. The State which has doubled
the value of its manufactured products in the last six years; the State
which leads all the South and Southwest in the number of manufac-turing
establishments, in the number of wage-earners, in the total
amount of wages ($46,000,000), and in the values added annually by
the processes of manufacture ($119,000,000).
That his is the State which can and does raise literally everything
from sub-tropic figs to sub-arctic cereals and grasses, with a growing
season that reaches as high as 267 days in the year. That his is the
State which doubled its crop values from 1900 to 1910, and again from
1910 to 1916, and is now producing annually from its soil $242,000,000
worth of agricultural products.
But most of all, if he values his State point of view, let him learn to
think of IsTorth Carolina in terms of service, a service due from him by
]^8 Seventeenth Annual Session
reason of his obligation to tlie past and a service laid upon him now
with pressing insistence by those present conditions which challenge the
spirit to serve on the part of all good citizens. We have come far in
this present generation, but we shall have much before us that is com-pelling
and constraining. Let him reflect that 71 per cent of all the
land in l^Torth Carolina is today a wilderness of idle acres, 22 million
such idle acres the most part of which is yet in scrub pine and broom
sedge. Let him feel the challenge of this fact, i. e., that we could double
our present rural population without disturbing a single home or a
single now cultivated acre and still have left 5 million wooded acres,
forest enough for the fuel and lumber needs of our thus doubled rural
population. That, although our pro rata actual school attendance out-ranks
every other Southern State and is within 1 per cent of the average
for the entire United States, and although illiteracy has dropped mar-velously
in the past ten years, and although our illiteracy per cent is
now lower than that of any of our Southern neighbors, there are yet a
quarter of a million of illiterates within the State. Let him include
this fact in his point of view.
Let him in all good conscience hear and heed the call to community
service, rural and urban. Let him enlist in the combat against prevent-able
disease, poverty, juvenile crime, and all forms of social injustice.
Let him be the sort of man who proves his love of ITorth Carolina by
serving I^orth Carolina, and who earns his right to citizenship not by
the accident of suffrage, but by the high claim of service—our :N'orth
Carolina, old, wrinkled, worn and homely, yet alert, aggressive and
virile, with a compelling quietness, a satisfying strength and a master-ing
gentleness ! The sort of a State you have to love and, therefore, the
sort of State you want to serve.
State Literary and Historical Association. 19
Edward Livingston
By William H. Taft.
When Secretary Eoot was urging me to accept President McKinley's
appointment to the Philippines and was pointing out the reasons why I
should go, he said, among other things, "You will have the same oppor-tunity
for making a Code that Livingston had in Louisiana.'' At the
time I confess I only had an indefinite idea of who Livingston was, or
what his Code was, and in the interval since that time my interest in
him was not again aroused until in the study of the limitations of the
power of the President and his responsibilities I ran across a reference
to the only suit, so far as I know, which has ever been brought against
a President to recover personal damages for an official act as a tort. It
was the suit of Edward Livingston against Thomas Jefferson. The ex-ceptional
character of the action led me on to the story of its origin, and
then into the very romantic and remarkable life of the plaintiff in that
action. I have no doubt that all the incidents that my reading and in-vestigation
developed were well known in the politics of one hundred
years ago, but a century dims much that it would seem never could be
forgotten. At the risk, therefore, of reciting what may be well known
to many of my auditors, I thought I would take for my subject tonight
some of the chapters in the life of a very able and brilliant lawyer, in
which he came into relations, friendly and otherwise, with such men as
Thomas Jefferson, John Marshall, and Andrew Jackson.
Edward Livingston was one of the Livingstons of ^ew York. He was
born in one of the Livingston manors on the Hudson, the youngest of a
large family. Robert Livingston, the Chancellor of JSTew York, the First
Foreign Secretary of the United States under the Confederation, and
the Minister to France who negotiated the Louisiana Treaty with IVTapo-leon,
was his elder brother. His sister married General Montgomery,
who fell at Quebec. Edward was born in 1764, and graduated at Prince-ton
at the age of seventeen in 1781. He studied law at Albany in the
office of Chancellor Lansing, and James Kent, Alexander Hamilton and
Aaron Burr were his intimate fellow students. He was strongly at-tracted
to the civil law, and gave much attention to its study. He
understood French, Spanish, and German, and spoke French fluently
and clearly. He began the practice of law in ISTew York, and soon
acquired a high reputation as a lawyer. Mr. Livingston was a lover of
literature and poetry, and was an orator with most fluent and felicitous
diction. He was greatly interested, however, in politics, and had strong
Republican leanings. He was elected to the Fourth Congress in 1794,
20 Seventeenth Annual Session
again in 1796, and again in 1798. He was an earnest supporter of
Jefferson. When Congress was presenting an address to Washington on
the occasion of his retirement two of the small minority of Congressmen
who objected to certain parts of that address and refused to make the
vote unanimous were Andrew Jackson and Edward Livingston, a cir-cumstance
that many years after probably made easy the intimate asso-ciation
into which these two men came. Mr. Livingston afterwards ex-plained,
in testifying to his great admiration for Washington, that he
did not object to the praise of the man, but he thought the approval of
his administration in the resolutions was unmeasured. It was Mr.
Livingston who moved the resolution requesting President Washington
to submit to the House of Representatives the correspondence between
the State Department and Chief Justice Jay concerning the negotiations
of the Jay Treaty. The President's refusal was based on the ground
that the House of Representatives was not part of the treaty-making
power, and its duty was merely to perform obligations which the Govern-ment
was in honor bound to meet by reason of a treaty duly made and
confirmed. You may remember that the House of Representatives then
passed the Blunt resolution, asserting that in all matters requiring the
action of the House to perform the obligations of a treaty, the House
had a right to be consulted. In President Adams's administration
Mr. Livingston moved resolutions which criticised severely President
Adams's conduct extraditing to England one Robbins, an Irishman,
charged with murder on an English ship on the high seas, who had
escaped to South Carolina, where he was arrested. President Adams
wrote to the United States Judge, giving it as his opinion that the
charge of piracy against the accused could not be sustained, and saying
that if the judge found the facts charged to be probably true he would
issue his warrant of extradition in response to a request from the
British Government. The judge agreed with the President, that the
offense was not piracy, and found there was probable cause for the
charge of murder. Robbins was delivered to the British agent, taken to
England, indicted, tried, and hung. The Jay Treaty provided for extra-dition
for each country to the other of fugitives charged with murder
and other crime, but in view of the unpopularity of the treaty Congress
had passed no act providing the usual statutory machinery for effecting
such extradition. The resolutions charged the President in this case
with unduly interfering with the judicial branch of the Government
and with violating the rights of Robbins by such executive exercise of
power.
John Marshall was a member of the same Congress. Livingston and
Gallatin both spoke in support of the resolutions, and Marshall answered.
State Literary and Historical Association. 21
Marshall's ansAver is one of the most couvincing and able legal argu-ments
ever made. It is reported that Gallatin took notes of Marshall's
argument for a time, and then threw away his memoranda. He was
asked whether he was going to reply to Marshall, and he said he had in-tended
to do so, but that his argument was unanswerable. Marshall
demonstrated that under the constitutional duty imposed upon the Presi-dent
of taking care that the laws be faithfully executed, and the pro-vision
of the Constitution peculiar to our country that treaties are laws
whenever they contain language mandatory and not promissory, it was
not only the power but it was the peculiar function of the President to
perform the obligation of the Government and deliver over this accused
person who came within the letter and the spirit of the written obliga-tion
for extradition. The argument was subsequently published in the
5th Wheaton, United States Supreme Court Reports, Appendix, page 1.
One hundred years later Mr. Justice Gray, speaking for the Supreme
Court, cited this argument of Marshall as a conclusive demonstration of
the power of the President in the execution of treaties as the law of the
United States.
Upon his retirement from Congress, at the end of Adams's adminis-tration
and the beginning of Mr. Jefferson's, Mr. Livingston was ap-pointed
by Mr. Jefferson to be United States District Attorney for ]^ew
York. At the same time Governor George Clinton appointed him to be
mayor of the city of I^ew York. Such pluralism would not be per-mitted
now, but in those days it did not evoke public criticism. Mr.
Livingston held both offices for nearly three years. Then something
occurred which colored his whole life, and which revealed in him a de-fect
of character that followed him throughout his great career and
added much to his disappointment and sorrows. An epidemic of yellow
fever broke out in ISTew York. Mr. Livingston was most active in his
efforts to stamp out the disease and to aid those of the people who were
stricken. He contracted the disease himself, but after a severe illness
recovered from it. While engaged in his works of relief a Government
agent from Washington visited his office as District Attorney and ex-amined
his accounts. In those days the United States Attorney col-lected
funds for the Government and retained large sums on deposit.
The examiner found that Mr. Livingston was short in his accounts, and
first reported the deficit as reaching $100,000. A subsequent audit
reduced it, however, to $40,000. The deficit was due in part at least to
the embezzlement of a trusted clerk, but there was much confusion in
Mr. Livingston's financial affairs, and the defalcation grew out of a
habit, which was inveterate with him, of free living beyond his means.
Livingston at once deeded all his property to the Government of the
22 Seventeenth Annual Session
United States and resigned both offices. The citizens of 'New York,
grateful to him for his great and efficient aid to them during the yellow
fever crisis, petitioned him to withdraw his resignation, but he declined
to change his purpose and immediately left for New Orleans, where he
arrived in February, 1804, with $1,000 in his pocket, to begin life anew.
He was then forty years of age. His first wife, by whom he had three
children, had died in 1801. His children were too young to take with
him to ^ew Orleans, and leaving them with a sister he went alone.
His love of the civil law and his familiarity with it, his knowledge of
Erench and Spanish, and his belief that tliere was a greater opportunity
to repair his fortunes in a new country that was bound to expand rapidly
in population and prosperity, all induced this step. He soon established
himself at the bar of New Orleans and came to the head of it. He
framed a simple code of legal ])rocedure to reconcile the previous civil
law practice to the change of sovereignty from Spain and France to that
of the United States and to the use of the trial by jury into their sys-tem,
as required by the Constitution of the United States. Mr. Jeffer-son
was evidently very distrustful of Livingston because of his defalca-tion
in office under him, and also because he suspected Livingston of
complicity with Aaron Burr. Indeed, General Wilkinson, who was the
military commander in charge of ISTew Orleans in 1806, charged Living-ston
with complicity in Burr's conspiracy. When Livingston appeared
as counsel in a habeas corpus case to secure the release of Bollman, who
had been arrested on a murder warrant, Livingston successfully refuted
the charge upon the spot and no proceedings were begun against him.
But all these circumstances aroused Jefferson's feelings against Living-ston,
and doubtless led him to the course which he took in the famous
Batture controversy. That controversy it is now my purpose to de-scribe.
Soon after Livingston began practice in Louisiana, he had as his
client one John Graveer. Graveer had inherited a tract of land fronting
on the Mississippi River just outside of N^ew Orleans. Against this
land, and outside of and at the foot of the levee, the river had formed
a sand bank, an alluvial deposit called in French a "batture." Graveer
at times had dealt with the batture as the owner and fenced in part of
it. At the same time, however, the citizens of ISTew Orleans had used
it as a common and had drawn sand and dirt from it to build levees.
Livingston examined the title, saw the value the land would have as the
city grew, and bought part of the batture from Graveer. The city
objected to the claim of ownership, and Livingston brought an action in
the territorial court against the city of ISTew Orleans to establish his
title, which in 1807 resulted in a final decision in his favor. He then
State Literary and Historical Association. 23
proceeded to improve the battiire. He built a canal about 250 feet long
right through the batture to the river, and he erected a house on the
land. The batture, of course, was beyond the regular levee. His plan
was to extend the levee around the batture, as had been done in other
cases, and thus bring the batture inside of the levee where it could be
better availed of. While he was engaged in this enterprise his workmen
were driven off by the people of 'New Orleans, who denounced the de-cision
of the court. The territorial governor, Claiborne, sought to
restrain the rioters, and agreed to submit the matter to Washington.
When this was done the question was considered by Jefferson and sub-mitted
to the Attorney-General, who rendered an opinion that this bat-ture
belonged to the United States, because it had belonged to France
and had been conveyed by treaty to the United States. Jefferson there-upon
issued a warrant to the marshal directing him to put all intruders
off of this St. Mary's Batture, as it was known, using United States
military forces if necessary. When Livingston heard of this he applied
to the territorial court, who had given him judgment, for an injunction
to prevent the action of the marshal, and the injunction was issued. But
the marshal, ignoring the injunction, called on a posse comitatus to as-sist
him to take possession of the batture. Livingston was thus sum-marily
deprived of any opportunity to continue his improvement or to
enjoy his property. Livingston then applied to the President, who
would not hear him. He applied to Congress, and successive Congresses,
who gave no ear to his complaint. Finally, exhausting all other reme-dies,
he brought a suit against Thomas Jefferson, the individual, in the
Circuit Court of the United States of Virginia, after Jefferson had
retired from the Presidency, in which he sought to recover heavy dam-ages
for trespass on his land. The case came before the Circuit Court,
Chief Justice Marshall presiding, and District Judge John Tyler, the
father of President Tyler, sitting on the bench with him. Mr. Jeffer-son's
counsel first moved that the plaintiff be compelled to give security
of costs. When this had been satisfied a demurrer was filed to the juris-diction
of the court on the ground that trespass upon real estate was an
action which could only be tried in a jurisdiction where the land was.
This question was heard and evidently considered with care by the Chief
Justice and Judge Tyler, and both pronounced opinions. The Chief
Justice referred to a decision of Lord Mansfield in which it was held
that such a suit could be brought in another jurisdiction, but in spite of
the great authority of that name the Chief Justice was with some reluc-tance
apparently obliged to hold that the weight of authority was
against the exercise of jurisdiction in Virginia over a trespass of land
in Louisiana, and so dismissed the action. Livingston had also brought
24 Seventeenth Annual Session
suit against the marshal in Louisiana. Though he won the suit in the
lower court he lost it on appeal by a divided court, not on the question
of title, but on the ground that the marshal was not personally liable for
acting on the President's warrant. Many years after he did secure some
compensation which was not adequate to the loss he had sustained, and
which was the result of compromise. This batture controversy had at-tracted
the attention of the jurists and politicians of the United States,
and Mr. Jefferson had been criticised by Chancellor Kent and others
for what was regarded as his arbitrary and high-handed course.
In a letter of Marshall to Story referring to some severe denunciation
of the Federal judiciary by Jefferson, which was frequent with him,
Marshall said : "He cannot forget Marbury and Madison or the bat-ture."
To meet these criticisms, after the decision in the Virginia case, Mr.
Jefferson published what he entitled "The Proceedings of the Govern-ment
of the United States in Maintaining to the Public the Beach of
the Mississippi Adjacent to l!^ew Orleans Against the Intrusion of Ed-ward
Livingston, Prepared for the L^se of Counsel by Thomas Jeffer-son."
It was first printed in ISTew York in 1812, and then later repub-lished
in Hall's American Law Journal, volume 5, in 1814. Mr. Jeffer-son's
statement began as follows
:
"Edward Livingston, of the territory of Orleans, having taken possession
of the beach of the river Mississippi adjacent to the city of New Orleans, in
defiance of the general right of the nation to the property and use of the
beaches and beds of their rivers, it became my duty, as charged with the
preservation of the public property, to remove the intrusion, and to maintain
the citizens of the United States in their right to a common use of that beach.
Instead of viewing this as a public act, and having recourse to those proceed-ings
which are regularly provided for conflicting claims between the public
and an individual, he chose to consider it as a private trespass committed on
his freehold, by myself personally, and instituted against me, after my retire-ment
from ofllce, an action of trespass, in the circuit court of the United
States for the district of Virginia. Being requested by my counsel to furnish
them with a statement of the facts of the case, as well as of my own ideas
of the questions of right, I proceeded to make such a statement, fully as to
facts, but briefly and generally as to the questions of right. In the progress
of the work, however, I found myself drawn insensibly into details, and finally
concluded to meet the questions generally which the case would present, and
to expose the weakness of the plaintiff's pretentions, in addition to the
strength of the public right. * * * j passed over the question of jurisdic-tion,
because that was one of ordinary occurrence, and its limitations well
ascertained. On this, in event, the case was dismissed; the court being of
opinion that they could not decide a question of title to lands not within their
district. My wish had rather been for a full investigation of the merits
at the bar, that the public might learn, in that way, that their servants had
State Literary and Historical Association. 25
done nothing but what the laws had authorized and required them to do.
Precluded now from this mode of justification, I adopt that of publishing what
was meant originally for the private eye of counsel."
Jefferson's statement covers 115 pages. He was answered by Mr.
Livingston in 175 pages. Mr. Livingston opens his answer as follows:
"When a public functionary abuses his power by any act which bears on
the community, his conduct excites attention, provokes popular resentment,
and seldom fails to receive the punishment it merits. Should an individual
be chosen for the victim, little sympathy is created for his sufferings, if the
interest of all is supposed to be promoted by the ruin of one. The gloss of
zeal for the public is therefore always spread over acts of oppression, and the
people are sometimes made to consider that as a brilliant exertion of energy
in their favor, which, when viewed in its true light, would be found a fatal
blow to their rights.
"In no government is this effect so easily produced as in a free republic:
party spirit, inseparable from its existence, there aids the illusion, and a
popular leader is allowed in many instances impunity, and sometimes re-warded
with applause for acts that would make a tyrant tremble on his
throne. This evil must exist in a degree; it is founded in the natural course
of human passions—but in a wise and enlightened nation it will be restrained
—and the consciousness that it must exist will make such a people more
watchful to prevent its abuse. These reflections occur to one whose property,
without trial or any of the forms of law, has been violently seized by the
first magistrate of the Union—who has hitherto vainly solicited an inquiry
into his title, who has seen the conduct of his oppressor excused or applauded,
and who, in the book he is now about to examine, finds an attempt openly
to justify that conduct upon principles as dangerous as the act was illegal
and unjust."
I have read both. Mr. Jefferson's suggestions and Mr. Livingston's
answer, and they are well worth reading. Mr. Jefferson's suggestions
are a labored defense of what seems to me to have been a plainly inde-fensible
action. He sought, first, to show that Livingston did not have
the title to the land from which he ousted him, but that it was in some
third person—an utterly insufficient defense, because Mr. Jefferson's act
could not rest for justification on the title of some other person but
only on the title of the United States. In asserting the title of the
United States he proceeded, with an industry most commendable in a
better cause, to quote from the law of France and Spain on the subject
of "alluvial increases to river banks," and to show that the title of the
batture was in France and passed from France to the United States.
The answer of Mr. Livingston was, as that staid old authority, the
British Encyclopedia, says, "a crushing one." It left Mr. Jefferson no
place to stand upon either in his argument that the batture belonged to
the United States or in his claim that under the act of Congress he was
26 Seventeenth Annual Session
entitled to remove squatters from Government property. The istatute
plainly had no relation to one who had acquired his title before its pas-sage,
or indeed to one who had a title such as Livingston had sustained
by the decree of a competent court, even though that decree was not
binding upon the United States as a party to it. The trenchant style,
the satire and the irony an,d the invective of Livingston must be read to
be appreciated. One can well understand how Chancellor Kent could
write to Livingston felicitating him on the complete demonstration of
his right and Mr. Jefferson's wrong. I admire Thomas Jefferson as a
genius in many ways, as a patriot, a real Democrat, a promoter of edu-cation,
the founder of the University of Virginia, and a great statesman
and politician, but he does not appear at his best in this batture contro-versy.
The special pleading of which he is guilty, the inconsistencies of
the positions that he takes, his disingenuous citations, leaving out im-portant
additions that would change the effect of the citation as author-ity
are all brought out by Mr. Livingston with clearness and force and
with a sincere indignation that manifested itself sometimes in the keenest
ridicule and at other times in the most eloquent invective. He closed his
answer as follows
:
"I now take my leave of Mr. Jefferson, In my answer, I have confined
myself to his book. Notwithstanding the strong temptations which assailed
me almost in every page, I have strictly kept within the boundaries of a just
(and, I think, considering the wanton attack) a mild defense. My future
conduct will depend much on that of my adversary. I shall continue to reply
to every argument that may be addressed to the public on this subject.
Knowing that my cause is good, I do not despair even with humble preten-sions,
to make its justice appear. For this purpose I have always courted
investigation; I should have preferred it in a court of justice, but do not
decline it before the public,
"Though some may condemn me only on hearing the name of my opponent,
there are many, very many in the nation, who have independence enough to
judge for themselves, and the ability to decide with correctness—to such I
submit the merits of a controversy which has been rendered interesting as
well from the constitutional as the legal questions it involves, and on which
Mr, Jefferson has, by his management of it, staked his legal, his political,
and almost his moral reputation. That he should not have understood the
nature of my title and the different foreign codes on which it depends, is no
reproach; that he should have acted at all without this knowledge, must sur-prise—
that he should have acted forcibly, must astonish us, but, that he
should persevere in the same pretense of understanding the laws of France
better than gentlemen bred to it from their childhood, and who, engaged on
the same side of the controversy with himself, have abandoned the ground
he has taken, that he should obstinately justify an invasion of private
property, in a manner that puts it in the power of a president with impunity
to commit acts of oppression at which a king would tremble—that he should
do all this and still talk of conscious rectitude, must amaze all those who look
State Literary and Historical Association. 27
only to the reputation he has enjoyed, and who do not consider the incon-sistency
of human nature, and the deplorable effects of an inordinate passion
for popularity."
So far as I know, Mr. Jefferson made no further answer. Indeed it
would have been difficult for him to do so.
After Livingston had prepared his Criminal Code for Louisiana,
which gave him deserved and worldwide fame as one of the great law-givers
of modern times, and of which I shall say something later, he
sent it to Mr. Jefferson for suggestions. Mr. Jefferson pleaded his great
age and his inability to comment upon the Code as it deserved, but he
said:
"I have attended to so much of your work as has heretofore been laid before
the public, and have looked with some attention also into what you have now
sent me. It will certainly arrange your name with the sages of antiquity."
And he closes a long letter with this expression : ^'Wishing anxiously
that your great work may obtain complete success and become an exam-ple
for the imitation and improvement of other States, I pray you to be
assured of my unabated friendship and respect."
Ten years after Jefferson's death Livingston appeared as senior coun-sel
for the city in the case of New Orleans v. the United States, argued
and decided in the Supreme Court of the United States in 1836 and
reported in 10th Peters, 662. The question in the case was unlike that
in the Batture case. The city of l^ew Orleans had extended its streets
across what was really a batture down to the river. The tract had been
gradually enclosed within the extended levee. The issue was whether
the United States by transfer from France and Spain had not acquired
such a right in this open space as to prevent the city from extending its
streets through it. Mr. Webster was associated with Mr. Livingston in
representing the city and Benjamin F. Butler, Attorney-General of the
United States, represented the Government. In the course of the argu-ment,
Mr. Butler referred a number of times to Mr. Livingston's answer
to Mr. Jefferson and commended the accuracy and lucidity of his deal-ing
with certain of the issues arising in the case then under argument.
When Mr. Livingston came to reply he used this language, which will
be found on page 691 of 10th Peters
:
"The reference to the pamphlet, from which the argument has been drawn;
the flattering terms in which the attorney-general has been pleased to speak of
it; and the possibility that, in looking at it, the court may recur to other parts
than those immediately relating to the question before them, oblige me to ask
their indulgence for a single observation; irrelevant, it is true, to the case, but
which I am happy to find an opportunity of making. The pamphlet was
28 Seventeenth Annual Session
written under circumstances in which the author thought and still thinks, he
had suffered grievious wrongs; wrongs which he thought, and still thinks,
justified the warmth of language in which some parts of his arguments are
couched; but which his respect for the public and private character of his
opponent always obliged him to regret that he had been forced to use. He
is happy, however, to say, that at a subsequent period, the friendly intercourse
with which, prior to that breach, he had been honored, was renewed; that
the offended party forgot the injury; and that the other performed the more
difficult task (if the maxim of a celebrated French author is true) of forgiving
the man upon whom he had inflicted it. The court, I hope, will excuse this
personal digression; but I could not avoid using this occasion of making
known that I have been spared the lasting regret of reflecting that Jefferson
had descended to the grave with a feeling of ill will towards me."
The case was decided in favor of tlie city of 'New Orleans and against
tlie United States. In leaving the Batture case I should say that Liv-ingston
bought his interest in it originally Avith the hope that its in-crease
in value would enable him to pay off his debt to the United States
growing out of the defalcation as District Attorney of New York. He
had confessed judgment for more than $100,000 and had surrendered all
his then property to satisfy as much as it would. The batture followed
him for many years of his life, and while he lived was a liability and
drained his pocket and his strength. He did settle his debt wath the
United States, however, principal and interest, the interest amounting
to more than the principal. When Jackson sent his name to the Sen-ate
as Secretary of State, Clay moved a scrutiny of the settlement of
Livingston with the Government. Lie was induced to withdraw the
motion on Senator Dallas's assurance of its entirely honorable character,
but this did not prevent Clay in subsequent attacks upon Jackson from
classing Livingston with notorious defaulters in the Government.
There remains for me to say something of Livingston's relations to
Andrew Jackson and of the Code upon which rests his chief right to
rank among the really great. In 1814 the English were threatening the
territory of the United States along the gulf, and General Jackson,
stationed at Mobile, was taking measures to meet them. The English
hoped that the Erench and Spanish Creoles, with whom the transfer of
Louisiana had not been very popular, might be induced to welcome them
and side with them. There were other elements, too, in the community,
whose loyalty was uncertain. There were the free persons of color, and
there were the slaves. Livingston, who had become the acknowledged
leader of the bar of New Orleans, was much concerned, and was active
in seeking to arouse all the people to the necessity of measures for de-fense.
Having married a Erench lady a year after he came to Louisiana,
for his second wife, he was popular with the Erench and was effective
I I ! r
State Literary and Historical Association. 29
in enlisting tlieir support. Having known Jackson through his associa-tion
with him in Congress, to which I have ah*eady referred, Jackson
was glad to avail himself of his services. Jackson, when he came to 'New
Orleans to look the ground over, dined with Livingston the first evening,
and soon thereafter appointed him as a volunteer aid. Livingston was
very active before and during the Battle of Kew Orleans. He exposed
himself in his duties many times, and his courage and eifectiveness
called forth the warm approval of Jackson, who gave him his portrait
with a most commendatory inscription. The artist was French and gave
Jackson a much more ISTapoleonic cast of countenance than Jackson's
other portraits led us to think he had. Livingston continued to serve
Jackson until he left l^ew Orleans. He interpreted Jackson's addresses
to the French and he lent him his aid in every way by advice and
activity.
Livingston was a man of sweet disposition, charming manner and
great goodness of heart, but the historians refer to him in a way that
indicates that his reputation in Louisiana for probity was not unques-tioned.
Professor Bassett, in his life of Andrew Jackson, speaks of
Livingston as a lawyer of "talent, but not too scrupulous." Gayarre, in
his history of Louisiana, refers to him as the first lawyer of JSTew Orleans,
but "of supposed rapacity." It is to be presumed that the story of his
defalcation had followed him to ISTew Orleans, and it is quite evident
that he had encountered much criticism of the people of New Orleans
in his effort to possess himself of the batture. Moreover, in the zeal of
his advocacy, he had incurred enmities and aroused criticism in which
there was some element of justice. All his life long he contracted debts
and did not pay them promptly.
For four or five years before the Battle of I^ew Orleans a band of
men who called themselves privateers and who preyed upon Spanish
vessels had their headquarters on an island in one of the bayous west
of the mouth of the Mississippi called "Barrataria." The island was the
island of Grande Terre. They first claimed their commission as priva-teers
from the French island of Guadaloupe, and when that was captured
by the English they solicited and obtained a commission from a newly
established republic of Cartagena, claiming independence from Spain.
They carried on a very lucrative business of defrauding the enemies of
the United States by smuggling the merchandise plundered from Spanish
merchantmen into l^ew Orleans. Their sale of these smuggled goods
was open and almost defiant. The people from ISTew Orleans, many of
them, connived at it and bought the articles sold, although Claiborne
protested and besought the Legislature of the State in vain for aid to
suppress this lawlessness. Finally a naval expedition of the United
30 Sevew^teenth Annual Session
States Government broke up their settlement at Grande Terre and cap-tured
one of the two brothers Lafitte, who were the leaders. Professor
Bassett says that Livingston represented them as counsel. Whether this
representation was after only some of them had been captured and im-prisoned
in ISTew Orleans, and he was merely appearing in their defense,
or whether it had been maintained earlier pending their illicit business
career, of which there is some intimation, does not distinctly appear.
In spite of the successful naval expedition against them, the Barra-tarians
seemed to have returned to Grande Terre whence they had fled,
and there under Jean Lafitte resumed operations. While there in 1814
a British war vessel came to Barrataria Bay, and the British Admiral
in command in the Gulf offered Lafitte a commission in the English
J^avy and a large sum of money if he and his men would join their
forces. Lafitte sent the communications to a friend in ISTew Orleans to
be presented to the authorities. His brother was still in prison. When
this became known, Jackson in issuing a proclamation to the people
referred with scorn to the fact that the English sought to associate them-selves
with "pirates, and robbers and hellish banditti." Afterwards,
however, he was glad to accept their services in defense of 'New Orleans,
and in his general orders after the battle referred to them as gentlemen
and privateers, with great commendation of their courage and valor.
After the battle Jackson continued the martial law when the necessity
for it had ceased, and issued an order sending the French aliens out of
the city. A French naturalized citizen published a letter in which he
criticised this order severely. Jackson had him arrested and committed
to jail. Hall, who was the United States District Judge, issued a writ
of habeas corpus to inquire into the legality of this arrest. Jackson
thereupon arrested the United States Judge and confined him. After
the news of peace came martial law was suspended, and Judge Hall, at
the instance of the District Attorney, cited Jackson for contempt. Jack-son
attempted to answer, but the court declined to hear him and fined
him $1,000, which he paid. It is suggested, though without direct proof,
that Livingston was Jackson's adviser in this illegal course, but it is
difficult to believe that Livingston, with his accurate knowledge of the
law, could have allowed himself to give such advice. It is established,
however, that Livingston drafted the answer which Jackson attempted to
make to the proceeding instituted against him in Judge Hall's court for
contempt. It is noteworthy that the Barratarians were present when he
was summoned for contempt, and proposed to throw the judge into the
river, but Jackson repressed any such lawlessness, submitted to the juris-diction
of the court, and paid the fine. Subsequently he threatened to
secure impeachment proceedings against Judge Hall, but wisely allowed
the matter to drop.
State Literary and Historical Association. 31
Livingston liad not succeeded financially. His expenses were heavy.
As already said, the time that he had consumed on the Batture contro-versy
and the money expended were a loss, and the deht which he had
confessed judgment for to the Government still hung over him. His
affection for his wife and children was very tender. He had suffered
great grief in the loss first of a daughter and then of a son, neither of
whom he was able to see as much as he would. His letters to his son
are full of affection, wise advice, and may be compared in some ways
with the letters of Lord Chesterfield to his son. The beauty, fluency,
terseness, wit and humor of his style make the reading of anything that
he wrote most delightful. He was a man evidently of the kindest feel-ing,
anxious to please, anxious to help, a man of high ideals, if one can
judge by his expressions, but always belabored by financial burdens, due
to his lack of economy and business sense. The lady whom he married
for his second wife had herself had a romantic life. She was the daugh-ter
of a French noble family which had migrated from France to San
Domingo, and had acquired great wealth and constructed a marble
palace on the sea and surrounded themselves with hundreds of slaves, a
great plantation, and a most luxurious environment. The revolt of the
negroes in the island drove the family to ISTew Orleans. Mrs. Livingston
was a widow of not more than twenty when Mr. Livingston married her.
She had married for the first time at the age of thirteen, had lost three
children and her husband, and had returned to her father's house. In
her escape from San Domingo with her younger sister by a British
warship she saw her grandmother, who was in her party, killed by a
bullet of one of the revolting negroes. She was a very beautiful woman,
a woman of great culture, wide reading, and a real helpmeet of Living-ston
in his political career thereafter. He always kept open house in
'New Orleans, Washington, and Paris, and Mrs. Livingston presided in
his home with a grace and charm and distinction that all the statesmen
of the day noted.
From his earliest experience in Congress, Livingston had manifested
an interest in a reform of the criminal laws, and had moved a resolution
for a revision of the criminal laws of the United States while he was
still a representative in Congress from l^ew York. He had an interest
in the humanizing of the criminal laws and the punishment of criminals
as deep and earnest as that of Romilly or Howard. In 1821 the Legis-lature
of Louisiana elected him to revise the entire system of criminal
law of the State. He was admirably fitted to do this. He had a pro-found
understanding of jurisprudence and the widest knowledge of the
codes of the various legal systems of the world, especially the common
law, the Roman law, the civil law, the Spanish Code, and the Code
ISTapoleon. He had a fluency in felicitous, accurate, lucid, terse but com-
32 Seventeenth Annual Session
prehensive expression that was remarkable and supplied just what was
needed in a lawgiver. With the most absorbing industry he devoted his
attention to the preparation of what was certainly an ''opus magnumf
He called his work a penal system consisting of four codes, a code de-fining
crimes, a code of criminal procedure, a code of evidence, a code
of prison reform, with an appendix of definitions. He wrote in his
report to the Legislature a volume of explanation and argument to
justify each code which he had prepared. After he had devoted three
years to this labor and had prepared the manuscript for the printer he
suffered the unusual misfortune of having his entire manuscript, of
which he had no copy, destroyed by fire. But so clearly defined in his
mind had his work become that in two years more he was able to repro-duce
both the code and his argument for it and his explanation. ]^o one
can read, even in a cursory way, as I have done, the plan of the code,
his explanations of it, and the style of the various sections of it, with-out
joining the world of his time in profound admiration for his work.
It gave him a reputation abroad as a jurist on the continent certainly
equaling that of either Story, Marshall, or Kent. He was made a mem-ber
of the institutes of many countries, notably that of France, and the
great American lawyers all pronounced encomiums upon his work. Ben-tham,
the great English philosopher and law reformer, was most pro-nounced
in his praise of the work.
Livingston was fifty years ahead of his day in the liberality of his
enlightened provisions for punishment. In the preamble of the Code
he proposed, was this
:
"Vengeance is unknown to the law. The only object of punishment is to
prevent the commission of offenses; it should be calculated to operate: First,
on the delinquent, so as by seclusion to deprive him of the present means,
and by habits of industry and temperance, of any future desire to repeat the
offense.
"Secondly, on the rest of the community, so as to deter them by the
example, from a like contravention of the laws. No punishments greater than
are necessary to effect these ends, ought to be inflicted. No acts or omissions
should be declared to be offenses, but such as are injurious to the State, to
societies permitted by the law, or to individuals.
"But penal laws should not be multiplied without evident necessity; there-fore
acts, although injurious to individuals or societies, should not be made
liable to public prosecution, when they may be sufficiently repressed by
private suit."
Again
:
'
"Penal laws should be written in plain language, clearly and unequivocally
expressed, that they may neither be misunderstood nor perverted; they should
be so concise, as to be remembered with ease; and all technical phrases, or
words they contain, should be clearly defined. They should be promulgated in
such a manner as to force a knowledge of their provisions upon the people;
State Literary and Historical Association. 33
to this end they should not only be published, but taught in the schools; and
publicly read on stated occasions.
"The law should never command more than it can enforce. Therefore,
whenever, from public opinion, or any other cause, a penal law cannot be
carried into execution, it should be repealed."
He was very much opposed to capital punisliment, and made the pun-ishment
hard labor for life. He was very anxious to prevent contamina-tion
of criminals by association, and he provided for a separate confine-ment
of prisoners. He divided them into classes. Those under eighteen
he sent to one prison of reform and those above eighteen to another.
He provided vocational education for the younger class. Modern penolo-gists
may not agree with all his ideas, but the liberality of his purpose
and the general practical details that he inserted in his Code are quite
wonderful in view of the conditions that then prevailed.
It is not surprising, in view of this work, that Sir Henry Main, him-self
a great expounder of law, spoke of Livingston "as the first legal
genius of modern times." The Legislature of Louisiana was not sufii-ciently
progressive and courageous to adopt his code, but many States
have borrowed from it. His code of reform and prison discipline was
adopted by Guatemala. When a World Congress of Prison Reform was
about to be held in Europe a new edition of his works on the criminal
law, including this code and one prepared by him while in Congress for
the United States, was published with an introduction by Chief Justice
Chase, who speaks in highest commendation of Livingston as a world
reformer in this field. After the completion of his criminal code he was
appointed on a committee to draft a civil code of Louisiana, which the
Legislature for the most part adopted in 1825. The most important
chapters of this, including all those on contracts, were prepared by
Livingston alone.
Livingston was elected to Congress and represented Louisiana from
1823 to 1829. Because of his duties in Congress he did not return to
Louisiana to seek a reelection, and probably because of his absence he
was defeated. But the Legislature of Louisiana thereupon elected him
to the Senate, and he entered that body with Jackson's inauguration
as President and served there. He was offered the mission to France
by President Jackson after he had been elected to the Senate, but he felt
obliged for financial reasons to decline. As already said, he was one
of Jackson's intimate friends, and was perhaps one of the first to
propose to him that he should be a candidate for the Presidency.
After Van Buren retired from the State Department under Jackson,
Livingston was invited to succeed him, and with some hesitation he
accepted.
During Livingston's service in Jackson's Cabinet the controversy arose
between the Government of the United States and the State of South
34 Seventeenth Annual Session
Carolina over tlie enforcement of the customs laws of the United States,
and the Legislature of South Carolina passed its nullification ordinances.
Livingston, as Secretary of State, wrote the proclamation which Jack-son
issued to the people of South Carolina and to the people of the
United States on the subject of nullification. It is an admirable docu-ment,
and, as has been truly said, it argues the case against nullification
with all the charm, force and style of John Marshall. The vigor of the
assertion of ISTational power was so great that some of Jackson's friends
were troubled over what they called the '^Metaphysics of the Montesque
of the Cabinet."
Jackson was very fond of Livingston, but, as the correspondence
shows, he did not have the profoundest confidence in his political judg-ment.
He spoke of him during his incumbency as Secretary of State as
a polished scholar, an able writer, and a most excellent man, but he said
"he knows nothing of mankind, and he lacks Van Buren's judgment."
He also referred to the fact that his memory was then somewhat failing
him.
In the controversy with the United States Bank and Jackson's deter-mination
to remove the deposits, Livingston was not in full sympathy
with him and tried to effect a settlement and compromise between the
contending parties; but he failed. Jackson then renewed the offer to
Livingston which he had made him at the beginning of his administra-tion,
that of the post of Minister to France. The post, always honorable
and important, was especially so at this time when an issue was pend-ing
as to the payment by France of what were known as the French
spoliation claims, which France had agreed to pay, but failed to appro-priate
the money for. Louis Philippe was then King of the French and
found difficulty in persuading the French Assembly to make the appro-priations.
Livingston accepted the offer, left the Cabinet and went to
France. In his usual state of pecuniary distress he borrowed $18,000
from the United States Bank. In view of the strained relations between
Jackson and the bank, which Livingston sought to relieve by a compro-mise,
the acceptance of such a favor from the bank scandalized his
friends.
Livingston's life in France as Minister, of course, was full of delight.
Lie and his wife came into close relationship with Lafayette, who was
still living and had been a bosom friend of Livingston's family. As an
Associate Member of the French Institute, life in Paris was all he could
desire. He succeeded after much effort in securing an appropriation by
the French Assembly of the money due under the treaty, but it was
accompanied by a condition that President Jackson should withdraw
certain strictures that he had made upon the French Government in a
State Literary and Historical Association. 35
message to Congress. The result was that ultimately Livingston asked
for his passports and returned to the United States, where he was re-ceived
with great warmth. The matter was settled by the mediation of
England, the money was paid, and a construction which General Jack-son
put upon his message was held by the French to be an explanation.
Livingston wished to return to France, and intimated his willingness to
do so to Jackson, but Jackson appointed Cass. Livingston retired to the
estate which had been left him on the Hudson by his sister, Mrs. Mont-gomery,
and there lived out the few years of his life remaining.
This is the career of a great jurist and lawgiver. There are few lives
in our history more replete with unusual and romantic incidents, with
variety of experience, with great constructive and useful work. His
close association with the other great men of the country doubles one's
interest in him. His fame was greater abroad than at home. While we
reluctantly confess that he had weaknesses, we would forget it in the
light of his genius and his heart. A study of his personality charms.
His broad sympathies awaken affection. The great code of enduring
usefulness which he left to his countrymen and the world commjands our
grateful admiration.
36 Seventeenth Annual Session
The President and the Presidency
By L. Ames Brown.
I.
It is much too early yet for us to attempt to estimate Mr. Wilson as
an historical figure. We are too near him for that and our perception
is too subject to the feelings which have heen aroused by his policies
and the events of the times. I^evertheless^ the business of assessment
and review may not be altogether unprofitable now that Mr. Wilson's
first administration is drawing towards its end; nor can we fail to ren-der
service by careful efforts to ascertain the essential features of the
very individual part he has played in our affairs. Fortunately, we have
standards which are sufficiently clear to make feasible an effort to gauge
the importance of those aspects of his work which have affected the
character of the office he has held. So our task is by no means hopeless
when we essay to find out how the Presidency has been shaped or
moulded by Mr. Wilson.
Mr. Wilson throughout his long application to the study of our gov-ernment
has been a severe critic of what he terms the J^ewtonian theory,
which would require a strict adherence to the limitations and checks
imposed by the Constitution; he has consistently upheld the view that
the spirit of the Constitution is capable of being stretched as the IsTation
grows, and has regarded our fundamental law as a plastic thing designed
to accommodate itself to the changing life of the people. As recently
as 1913 Mr. Wilson observed that "the character of the Presidency is
passing through a transitional state." "We know what the office is
now," he said, "and what use must be made of it; but we do not know
what it is going to work out into." He added that "the present position
of the Presidency in our actual system, as we use it, is quite abnormal
and must lead eventually to something very different." What has Mr.
Wilson contributed toward the correction of the abnormalities he so
recently observed? How has he facilitated the transitions which he
deemed so desirable? The answers lie in the record which all of us
have studied with unusual care as it unfolded, because of our tremendous
concern in it.
II.
President Wilson's relations with Congress constitute the most inter-esting
chapter of our study, in so far as interest depends on new de-velopments.
The President's conception of his prerogatives at the south
State Literary and Historical Association. 37
end of Pennsylvania Avenue lias created a stir more than once among
those members of the l^ational Legislature who stand for precedent and
the established order. That Mr. Wilson would be exceedingly "pro-gressive"
in his relations with Congress was foreshadowed a few weeks
before his inauguration March 4, 1913, when Mr. Samuel G. Blythe
announced in the Saturday Evening Post that the President would per-sonally
address joint sessions of the House and Senate instead of trans-mitting
long messages from the White House to be read separately in
each assemblage. The ISTational Capital seethed with comment, some of
it caustic, as soon as the Saturday Evening Post article was read. I
remember that the incident occurred soon after it had become known
that Mr. Wilson had turned down an invitation to join the fashionable
Chevy Chase Club, and that the two incidents coming so close together
served to develop the opinion among Washingtonians content with
Washington as it then was that they had a Tartar on their hands.
The President verified Mr. Blythe's announcement at the first oppor-tunity.
As soon as he was fairly settled in the White House he called
a special session of Congress to revise the tariff in accordance with
Democratic pledges; and when Congress met he arranged for a joint
session in the hall of the House of Representatives to listen to an ad-dress
from the President. Announcement of the President's intention
to address the Congress brought a great crowd to the Capitol. The de-mand
for seats in the House galleries was greater than at any time
since the Spanish-American war. With characteristic promptness. Presi-dent
Wilson stepped into his automobile at the White House just eight
minutes before 1 o'clock, the hour at which he had asked the two Houses
to meet. Coolly and naturally he drove to the Capitol, accompanied by
his private secretary, who carried a packet of half sheets of note paper
upon which the message had been printed. With every appearance of
naturalness, he proceeded to the House side of the Capitol and to the
Speaker's ofiice. There he met a committee of the House and Senate,
who were very much ill at ease, and permitted himself to be escorted
onto the floor.
The President's reading of his message and his announced intention
to make it customary provoked a discussion of the general subject of
the relationship between the Capitol and the White House. The Capitol
began to buzz. Such sticklers for custom as Senator Lodge talked freely.
Their interviews related to the precedents against the President appear-ing
in person to deliver his message, and brought out the information
that while Washington and Jefferson had resorted to the practice it had
gone out with the latter and no later President before Mr. Wilson had
revived it. Other Senators pointed out that there had been a purpose
38 Seventeenth Annual Session
in the minds of the fathers of the Government in establishing the Capi-tol
Building and the President's residence at opposite ends of Washing-ton's
broad thoroughfare. I remember well, too, the pleasure which
the late Senator Bacon of Georgia, chairman of the Senate Committee
on Foreign Relations, seemed to take in calling attention to a passage
in the diary of Senator McClay of Pennsylvania who told of the dis-pleasure
aroused when General Washington sought to i^articipate in an
executive session of the Senate to defend a proposed Indian treaty. The
scene was so stormy, according to McClay, that President Washington
absented himself from the executive session never to attempt another
visit.
These little outbursts did not serve to deter Mr. Wilson from trying
out another plan which he had in mind for acquiring greater influence
with the Congress. He recalled that there was a President's room just
outside the ante-chamber of the Senate. He conceived that this room
might be used to greater advantage than had been derived from it by
his predecessors, who simply visited it on the last night of each session
of Congress to sign bills. The President decided to use the room for
conferences on pending legislation with members of both Houses of Con-gress.
He did appear there a few weeks after his first address to the
Congress and conferred on several measures then in process of formu-lation.
The stir which followed was even greater than his address had
aroused. The precedent broken was one even more highly revered. It
was an invasion of the sanctum of the Senate. Most of the Senators
openly resented it.
As we study these developments, however, in the light of four years
experience we see that their significance was overestimated at the time.
Both visits to the Capitol were designed to get the country's ear for the
President, and they served him no further. Of course, when he over-turned
a precedent, properly announcing his intention to do so in ad-vance,
and appeared before a joint session of the Congress, he not only
assured himself of the undivided attention of each legislator, but he
had every thoughtful citizen in the country hanging on his words. It
Was just what he desired, and all that he got.
The House listened, unawed but interested. It was not so difficult
for Mr. Wilson's message to hold their attention as had been the case
with other Presidential messages. Mr. Wilson's was the length of a
short speech, whereas, dealing trenchantly with broad aspects of policy,
each of Mr. Taft's annual messages was a great compendium of detailed
statements which were furnished by the heads of Federal departments.
These messages used to be written by Cabinet officers and assistant Cabi-net
officers as well, and I know at least one newspaper correspondent in
State Literary and Historical Association. 39
Washiugton who had the honor to write a part of a message delivered
by one of our recent Presidents. Of course, these long messages, which
were read unintelligibly by the clerk of the House and the secretary of
the Senate, were not listened to, and were not even read afterwards by
many persons except students and newspaper editors.
Similarly, the President exerted no important new influence at the
President's room at the Capitol which he did not have in his study at
the White House. It was good advertisement for Woodrow Wilson,
who stood in need of being humanized and definitely outlined in the
public eye, and it was good advertisement for the measures which he
discussed up there. But that was all. His arguments had no potency
peculiar to the place, except that the Senators and Congressmen who
Avere invited in felt flattered, and therefore were more accessible to the
President's views. As a matter of fact, it can be said of both of these
customs established by Mr. Wilson, that neither placed in his hands a
surely effective instrumentality for swaying the Congress, nor assured
him of a measure of influence greater than his OAvn character established.
Mr. Wilson's most effective means of exerting his influence on Con-gress
has been in White House conferences with the members of the
House and Senate committees entrusted with the formulation of the
measures which he desired to shape. It is hardly an exaggeration to
say that the essentials of every important measure on which the record
of the Democratic Congresses of the past four years was made were
fixed in President Wilson's office at the White House. This was made
apparent during the formulation of the Underwood-Simmons Tariff
Law. The President had many conferences with Senator Simmons of
I^orth Carolina and Majority Leader Underwood of the House and
with other members of the Ways and Means Committee of the House
and the Finance Committee of the Senate. He deliberated with them
as to the schedules of the law which would best fulfill Democratic
pledges, sought their views, and subjected them to the closest scrutiny
from every angle. Then he made up his own mind and proceeded to
get his decision accepted by the Democratic leaders.
It chanced that no spectacular divergence of opinion arose until the
wool and sugar schedules were taken up. The President was convinced
that Secretary of State Bryan's views that sugar and wool ought to go
upon the free list were correct. Majority Leader Underwood, on the
other hand, held that the Democratic campaign pledge not to destroy
any industry by its tariff revision should protect the sugar industry of
Louisiana from the disasters of free trade, and that the necessities of
competition did not demand that all the revenues derived from the
tariff on wool should be abandoned. The President refused to recede
40 Seventeenth Annual Session
in eitlier case, altliougli lie did permit himself to be persuaded by Demo-cratic
Irrational Committeeman Robert Ewing, of Louisiana, tliat tbe
Louisianians deserved a period in wliicb to prepare themselves for the
removal of all duties on sugar. Mr. Underwood surrendered his convic-tions
to the President's for the sake of the party welfare, and so it may
be said that President Wilson had a more important part in determin-ing
the character of the tariff law signed by him than had been given
any recent President. His effective assertion of his O'^vn Adews con-trasted
strikingly with Mr. Cleveland's veto and with Mr. Taft's accept-ance
of Payne-Aldrich Law.
Formulation of the Currency Bill, the Anti-Trust Law, and the other
important measures embodied in the record of achievement upon which
the Democracy appealed to the country's favor in the recent election
produced repetitions of the incidents surrounding the writing of the
Tariff Bill. The Washington correspondents found that the "leads" of
these stories often came from the White House, and that if the Presi-dent's
will could be ascertained the outcome was fairly certain.
The series of instances in which the President's will was sought to
be inflicted upon Congress was climaxed in 1914, in his successful fight
for the repeal of the provision of the Panama Canal Act exempting
American shipping from the payment of tolls. A House of Representa-tives
controlled by the Democrats had passed this exemption. The
Democratic ISTational Convention which nominated Mr. Wilson for the
Presidency had adopted a platform committing the Democracy to the
exemption. Mr. Wilson decreed from the White House, however, that
the party position should be reversed and that the exemption should be
repealed. This incident was unprecedented in the history of American
politics since the advancement of the party system. The President did
not make a full public explanation of his position. The reasons given
in his message demanding the repeal were those relating to N^ational
honor and the necessity that America should not permit any question
to arise about her willingness to abide by treaty obligations. Undoubt-edly,
Mr. Wilson had the conviction that the Hay-Pauncefote Treaty
did obligate the United States to operate the canal without partiality to
her own shipping. Another interesting consideration said to have been
in his mind at the time touched the controversy then being carried on
between the United States and Japan over the Alien Land Law of Cali-fornia.
It was said that Great Britain, although Japan's ally, had
signified to the United States that she would not support Japan in a
war with the United States, provided the tolls exemption were repealed.
That may or may not have been idle gossip, but it is a fact that Admin-istration
leaders in both Houses of Congress made effective use of hints
State Literary and Historical Association. 41
that grave complications in our foreign affairs might be avoided by the
repeal. Some of the Administration workers did not scruple either at
tactics more open to question than this. For instance, it was said that
Congressman Kitchin of I^orth Carolina, then slated to succeed Con-gressman
Underwood as majority leader, was threatened by an Adminisr-tration
official with the President's opposition to his selection if he held
out against the repeal. I may say in passing that the same report of
the incident conveyed the information that Mr. Kitchin made just the
defiant reply to this threat which his friends consider it deserved. It
is believable, also, that the President's friends made profitable resort
to intimations of acceptable distributions of patronage in the tense
period when the outcome of the fight in the House hung in the balance.
The President was not adamantine, however, in his policy of guiding
Congress. His position was that he should have the largest voice in all
party councils. This did not preclude, of course, consultation with the
other party leaders and concessions on his own part where differences
arose. In most of his experiences with the Congress leaders the Presi-dent
has made his fight before the measure involved was brought out on
the floors of Congress for a vote. Except in a very few instances, he
has been guided by expediency in his dealings with the Congress leaders.
He would try as best he could to get them to accept his views, but if he
failed he did not resort to the executive veto.
Mr. Wilson has vetoed few important measures. His two vetoes of
the Immigration Bill, which would apply an educational test to immi-grants,
scarcely count, for both incidents were more or less political
claptrap. In each case Congress passed the measure in the expectation
that the President would veto it. The members passed it because they
washed to go on record as favoring the popular educational test, whereas
the President, whose views on immigration had been cited against him
in the 1912 campaign, was willing to take his chances politically with
the veto.
A time came in the first year of the administration when many of
the President's friends who held out for ideals as against political expe-diency
prayed that he might exercise his power of veto. It was when
the Congress embodied a provision in the Legislative, Executive and
Judicial Appropriation Bill exempting labor unions from antitrust pros-ecutions
under a special appropriation for the enforcement of the Sher-man
Law. The President failed to veto it. The explanation has been
advanced by persons having a confidential relationship with the Admin-istration
that the President had given his word to certain House leaders
to sign the measure at a time when he did not fully understand its sig-nificance,
and that later he preferred to incur the possibility of criticism
42 • Seventeenth Annual Session
than go back on his agreement. The explanation which has widest
currency, however, and greatest plausibility also, is that the President
was willing to make almost any sacrifice in order that no obstruction
might be placed in the way of the tariff bill and the currency and anti-trust
measures which it then seemed would constitute the body of the
Administration's legislative achievements.
The broadening of the President's influence over Congress has had
one inevitable result : the importance of the majority leadership of the
House has been greatly diminished. The President's laying hold of
much of the influence which the majority leader or the Speaker formerly
wielded has been facilitated by the fact that Mr. Kitchin, the ]3resent
majority leader, often found himself compelled by his convictions to
oppose the administration. Mr. Kitchin, out of consideration for the
party welfare, in practically every one of these instances, consented to
vote merely as an individual and not to attempt to organize a fight
against the President.
III.
It is as the leader of his party that the President has controlled Con-gress.
His dealings with Congress have had no taint of that privacy
which at times has impaired the public confidence in representative
government. His councils with the Congress leaders have been partisan
councils and no effort has been made to conceal their character. Except
in times of crises when the full Committee on Foreign Relations of the
Senate was invited to the White House, the men consulted by the Presi-dent
were the Democratic members of committees framing or handling
legislation whom the President considered it proper for him to guide.
The President's power in his party increased as the months of his
first administration rolled by. It was climaxed very naturally in his
dominance of the Democratic N^ational Convention at St. Louis. I^o
other national convention was ever more completely mastered by a single
man, for the simple reason that no such body could be more completely
mastered. The President selected the temporary chairman and the
chairman, and had them submit their speeches to him for review. He
selected the men to write the platform and outlined some of the most
important ideas to be embodied in it. He sent Secretary of War Baker
and Secretary of the ^avy Daniels to St. Louis to act as his personal
representatives in the convention and upon the platform committee. All
important developments at the convention were shaped by the President
through his personal representatives. The most important plank of the
platform, that on Americanism, was written by one of the President's
advisers and telegraphed to St. Louis by the White House after the
State Literary and Historical Association. 43
convention had assembled. Strong objections were voiced to this plank
by Democratic politicians, who did not think it would be wise for them
to" lay the lash upon the hyphenates. INTo one dared gainsay the Presi-dent
openly, however, for there were ominous reports from Washington
that if the platform committee rejected his Americanism plank he would
go to St. Louis and personally call upon the convention to sustain him.
xllso it was said that the President would repudiate his party platform
if it did not accord with his convictions on Americanism. In one other
matter the President inflicted his will upon the party organization for
their mutual benefit. He decreed that neither the platform nor the
speeches of the officers of the convention should make reference to the
issue of involving the judiciary in politics, which was then being raised
against Mr. Hughes. This overruled the views of important Democratic
leaders, as did the President's stand for a suffrage plank.
High as he has placed the prerogative of party leader, the President
has evinced a still greater regard for his place as spokesman of the
nation in matters which concern the national welfare. This role he has
assumed not only in times of international crisis, when the whole coun-try
was supposed to hold up the hands of the President, Mr. Roosevelt's
admonitions to the contrary notwithstanding, but also in time of domes-tic
crises, such as the recent controversy between the railroads and the
operatives' brotherhoods when a calamitous national strike was immi-nent.
A very impressive occasion of this sort came when the President
applied himself upon the stump last spring to the task of convincing
the nation that need existed for enlarging our instrumentalities of
national defense. The President was intent then on getting a bigger
army and bigger navy program through Congress. His own party was
divided, so he set out to prevail upon the rank and file voters of the
country of both parties to compel their representatives in Congress to
support the bigger defense movement.
The President's successes in extending his powers as party leader and
spokesman of the nation and his influence over Congress have a common
explanation. They result, first, from his personal characteristics ; the
Presidency has ever been a powerful office for a Jefferson, a Jackson,
or any other man of high spirit and imperious will. The other cause
of his success has been the effective way in which he has mobilized the
power of his office against those who stood in his way. Wot only has
he devised new means of doing this, such as his addresses to Congress
and his practice of writing letters for publication; he has had frequent
access to the opinion of the nation by a speech-making which amounted
to an appeal over the heads of the members of Congress to the source
of their representative power. Mr. Wilson's manner of doing this has
44 Seventeenth Annual Session
been effective in establishing bonds between bim and tbe electorate. It
is true, I tbink, tbat in many sections of tbe country the people them-selves
seem sensible of a more direct relationship with the Presidency
than they had thought existed before. Mr. Wilson's practice has been
to foster these ties. He has expressed his great interest in the thoughts
of the common man as a source of guidance for him in time of crisis,
and has sought to increase the number of citizens capable of sitting down
and writing really valuable letters to the Chief Executive in time of
stress. He has tried to develop an intimacy with "the silent men who
watch public affairs without caring too much about the fortunes of
parties."
There you have the source of the President's power. Mr. Wilson is
a man of great affability and a great power of persuasion, and exerts a
considerable influence by personal contact with Congressmen and Sena-tors,
although many of these have no real affection for him. Most of
the would-be recalcitrants, however, follow his leadership because they
fear his influence with their constituencies and they v/ant to profit by
this influence. There was a time, not long distant, when resentment
against Mr. Wilson's attempted domination of Congress reached a high
pitch on both sides of the Capitol. The evidence of this resentment had
all vanished before election day, however. It may be that the feeling
was smothered, or it may have died out. It is nearer the fact to say
that the Congressmen gradually waked up to the fact that Mr. Wilson
was stronger than his party, and that their most profitable role would
be that of his warm supporters.
IV.
Mr. Wilson once wrote : "What we need is harmonious, consistent
party government, instead of a wide dispersion of functions and respon-sibility;
and we can get it only by connecting the President as closely
as may be with his party in Congress. The natural connecting link is
the Cabinet."
At another time he said : "It may be that the new leadership of the
executive, inasmuch as it is likely to last (he was speaking of the promi-nence
into which Mr. Cleveland had been brought by his direction of
foreign affairs in his second term), will have a very far-reaching effect
upon our whole method of government. It may give the heads of the
Executive Departments new influence upon the action of Congress."
In accordance with these ideas Mr. Wilson as a student of our govern-ment
subscribed to the view that cabinets should be made up largely of
party leaders.
Mr. Wilson, in office, however, has chosen to establish direct contact
with Congress rather than to utilize the possibilities of the Cabinet as
State Literary and Historical Association. 45
a "connecting link." He lias been his own spokesman on practically
every important political occasion. The conviction is clear in my mind
that he subordinates partisan influence to administrative ability in his
present conception of Cabinet efficiency. Shortly after his reelection,.
Mr. Wilson made the significant statement that he was satisfied with his
Cabinet, that he regarded it as a team that had been tested. Apparently
he was not disheartened by any seeming dearth of meteoric players nor
inclined to repeat an effort to utilize the services of a distinguished
party leader like Mr. Bryan.
The President has not extended the power of his Cabinet beyond that
vested in previous cabinets. He has not encouraged his official advisers
to communicate important recommendations directly to Congress as
Postmaster General Hitchcock did his recommendation for Government
ownership of telephones during the Taft administration. Secretary of
War Garrison sought, in 1914, to forge ahead of the Administration in
the matter of army policy, but in doing so he opened the way for his
withdrawal from the administration, l^o other Cabinet officer has emu-lated
him on a very important matter of policy.
Cabinet officers have participated in practically all of the White
House conferences at which legislative policies were formulated. For
instance. Secretary of the Treasury McAdoo was consulted when the
Tariff Law and the Currency Law were being framed, and dealt directly
with the Committee on Banking and Currency, and Mr. McReynolds,
the former Attorney-General, was called in when the antitrust laws were
being prepared. These officers were present at the White House meet-ing,
however, merely as advisers, and they exerted no influence in the
conferences which they could not command by the intrinsic merit of
their arguments.
The President's relations with many of his Cabinet officers have no
high personal coloring, for he at times will go for weeks without seeing
one or more of them. His attitude in this respect is indicated by the
fact that in periods of crises, as well as at times of important develop-ments
in connection with the legislative program, the President has
suspended Cabinet meetings for weeks at a time.
The President has kept in close touch with important administrative
problems which the executive departments have been called upon to
handle, and has not scrupled at an effort to influence the Government
commissions in the evolution of their important policies. His para-mount
influence with the departments has been disclosed by his custom
of reviewing the plans of the Attorney-General with respect to great
antitrust cases. Two instances of the latter which have been widely
discussed were the intimation to the Interstate Commerce Commission
46 Seventeenth Annual Session
of the President's views regarding the noted 5 per cent rate case, and
his letter to Secretary of the Treasury McAdoo suggesting that the Fed-eral
Reserve Board authorize the establishment of joint agencies of the
Federal Reserve Banks in South America. At least one member of the
Interstate Commerce Commission is said to have been highly incensed
at the President's attitude toward the Commission during the considera-tion
of the 5 per cent rate case, and the Federal Reserve Board gave out
a public statement announcing its decision not to carry out the Presi-dent's
recommendation. The President paid his respects to Govern-ment
commissions in a speech at St. Louis in the spring of 1916, in
which he said : "It is very interesting how important men feel after
they get on a Federal board. They are thereafter hardly approachable.
They are jealous of nothing so much as being spoken to too familiarly
by the President, who seems to be regarded as some sort of suspicious
political influence."
To those members of the Cabinet who have yielded the obedience
which the President regards as necessary to team work, he has returned
an almost paternal loyalty. More than a year ago, when the Secretary
of Commerce, Mr. Redfield, was under fire, because of his conduct of
the Government's investigation of the Eastland disaster at Chicago, the
President stood firmly by him. At another time, when the agitation
against the Secretary of the l^avy, Mr. Daniels, was at its height, the
President declared in a private conversation : ''By God, he shall stay
here as long as I do."
Y.
Mr. Wilson's direction of our foreign policies during his administra-tion
was not an original exercise of the Presidential prerogatives. He
has fully asserted his function in regard to foreign relations, but so did
every other President whose tenure of the White House witnessed im-portant
international complications. His dominance of the State De-partment
has been interesting, however, because of its singular com-pleteness.
In the early stages of our difliculties with Germany, the saying had
currency in Washington that Mr. Bryan's only contribution to the im-portant
notes he signed were his signature and the address, "Gerard,
Berlin." It has been evident since Mr. Bryan's withdrawal and the
appointment of Robert Lansing to the Premiership of the Cabinet that
the President considered it more important that the State Department
should furnish him with information as to actual developments in
foreign affairs and as to precedents and proper diplomatic phraseology
than that it should advise him upon fundamentals of policy. The say-
State Literary and Historical Association. 47
ing that Mr. Wilson has been his own Secretary of State has more than
a grain of truth in it, although this statement would be unfair if it
conveyed any reflection upon the ability or splendid purposes of Mr.
Lansing.
The President has never consulted Congress on an important measure
of foreign relations. He has addressed the Congress repeatedly on the
Mexican situation and twice on our relations with Germany. But these
addresses were largely statements of fact and reports as to what the
President had done, or had decided to do. They were not bids for ad-vice.
Also he has called the Senate Committee on Foreign Relations
and the leaders of the House Committee on Foreign Affairs to the White
House, but for the same purpose. In nearly every case his mind already
had been made up and the Senators listened to the President.
The guidance to which the President has submitted in directing our
foreign relations has been that of public opinion. He does not hold
with those European conservatives referred to by Mr. G. Lowes Dickin-son,
who consider diplomacy a finished science closed to the influences
of democracy. On the other hand, he quite clearly has attempted to
accord his policy toward Germany with the purposes of the body of the
American people. Mr. Wilson has proclaimed his belief in the existence
of the composite mind of the ISTation. He has defined the obligation of
public servants to grasp unexpressed thoughts and unuttered aspirations
in the formulation of their policies. "The voice of America'' is a phrase
frequently upon his lips. And the same disposition to attune his foreign
policy to the composite thought of his constituency is reflected in certain
speeches in which he has asserted that it is the obligation of the new
statesmanship to give a new warmth and human coloring to the hitherto
cold and colorless relationships between one nation and another.
The influence I am trying to indicate is somewhat diflicult to detect in
all of Mr. Wilson's foreign policies. One might easily be content with
the acceptance of the statement that he was guided throughout the Lusi-tania
correspondence by the knowledge that the bulk of the American
people desired to remain at peace. That disposition was fairly easy of
ascertainment to a man with ordinary facilities for determining popu-lar
feeling. On the other hand, it is much more diflicult to demonstrate
that Mr. Wilson has had the public abreast of him at every stage of our
relations with Mexico. With no desire to revive any of the partisan
feeling of the recent campaign, I do feel justified in saying that there
have been times when there seemed at least a close division among the
American people as to whether it would not be better for the United
States to send an army into E'orthern Mexico to insure settled condi-tions
there in the future. The conclusion might be drawn from this that
48 Seventeenth Annual Session
in respect to Mexico Mr. Wilson had attached more importance to his own
convictions than to public opinion. It might also be concluded that he
was depending upon cloudy media for observations as to the state of
public opinion. The better conclusion, however, and the one in which
I have complete confidence, is that the President considers it equally
his duty in respect of foreign affairs to be guided by the steady currents
of national thought as he conceives it and to be impervious to unsteady
popular clamor. Thus he was responsive to the demand for the preser-vation
of peace with Germany, while he could not be influenced by the
widespread desire to have our army inflict peace on Mexico.
YI.
From the foregoing resume of what Mr. Wilson has done, we may pro-ceed
with justifiable confidence to an appraisal of his contribution to
the science of government. He has expedited the evolution of the Presi-dency
as a party leadership demanding statesmanlike qualities. That
is his outstanding contribution. Pie has made of the Presidency the
unifying and harmonizing factor in a not too well organized govern-ment.
That is the thing he has done which makes the Presidency a
somewhat different kind of office for his successors from what it was to
those who preceded him. He has gathered into the hands of the Chief
Executive more of the actual prerogatives of party leadership than
formerly were conceded to him. His administration has had nothing of
that ^^separateness" from Congress for which he criticised the first
Cleveland administration, and which would have characterized Mr.
Hughes's administration if we are to accept at face value his statement
that "The President is primarily an executive; it is his supreme duty
to attend to the business of the N"ation, to safeguard its interest, to
anticipate its needs, to enforce its laws." "My conception of the Presi-dency,"
said Mr. Hughes, "differs absolutely from Mr. Wilson's. I look
upon the President as the administrative head of the Grovernment. He
looks upon the President as primarily the political leader and the law-maker
of the JSTation." The President has been and will be held respon-sible
for every large matter in Washington. The country will look to
his office more and more to accept this responsibility. Mr. Wilson has
seen to it that the office should possess the power which goes with the
responsibility.
In thus shaping the Presidency, Mr. Wilson has followed up the line
of development discernible in our political history. Changes have been
made in our government, some by constitutional amendments, and
others, such as that in the method of electing the President, without
altering the Constitution. Further changes are predictable from the
State Literary and Historical Association. 49
character of what already has been done. Mr. Wilson has said that the
President "must be Prime Minister, as much concerned with the guid-ance
of legislation as with the just and orderly execution of law," and
"the spokesman of the ISTation in everything, even the momentous and
most delicate dealings of the Government with foreign nations.'' Sooner
or later he believes it inevitable that the President will "be made answer-able
to opinion in a somewhat more informal and intimate fashion."
It is clearly evident that this change will be worked out in true Ameri-can
fashion and recognized in the Constitution only when the popular
conception of the Presidency has advanced further along the lines laid
down by Mr. Wilson. The powers of the party leadership will be still
further enlarged so that the Presidency will be more than ever the in-tegrating
factor in what Mr. Wilson earlier referred to as the "disin-tegrated
structure" of our Government. Thus the [N'ation will avoid
"the pinch of disadvantage" which, according to Mr. Wilson, "must
sooner or later result from the singnilar division of our Government into
groups of public servants looking askance at one another." Thus it will,
to quote Mr. Wilson again, "substitute statesmanship for government by
mass-meeting."
The logic of our conclusion as to this phase of Mr. Wilson's work, it
seems to me, has no relation to our estimate of the foreign and domestic
policies for which he has been praised and criticised. Divergencies of
view as to the practicability and honorable character of his foreign and
domestic policies should not deter us, as they will not the historian, from
an appreciation of the wholesome development he has accelerated in our
governmental system. Progress in the direction in which his adminis-tration
has pointed the Government will bring democracy at last into
the very sight of its hope : efficient representation.
50 Seventeenth Annual Session
A New Epoch
By William Thomas Laprade.
It is not given to many generations to witness the passing of an epocli.
But every well-informed adult now alive knows that the past several
years have brought transformations almost too vast to be comprehended.
This year seems scarcely akin to 1913, and the next few years seem to
offer insuperable difficulties to any attempt to fathom them. If you
wish to get an impression of the changes now in process try to recall
your point of view three years ago. Better still, examine the files of the
daily and weekly press of that time. You will find yourself in another
world with strange questions, a vast ignorance, and petty quarrels. You
will find it hard to convince yourself that the same persons who are
living in these heroic years expressed themselves in that paltry language.
I know of only one other time in modern history that, in this respect,
can be compared with our own, namely, the early years of the French
Revolution. The newspapers, the contemporary memoirs, the pamphlets,
and the private letters of that time bear testimony that those who pro-duced
them were conscious that their day, like our own, marked the end
of one epoch and the beginning of another. They were not clear as to
the character of the past or as to what the future was likely to bring
forth, but they were convinced that at any rate the future would be
different.
Since this is a time of transition and heart-searching it would seem
to be appropriate to recall some of the characteristics of the epoch in-troduced
by the French Revolution which now seems to be passing, and
to see whether it is possible to look with any degree of plausibility into
the future.
We shall probably agree that the nineteenth century as an epoch in
history got fairly under way in 1814 on the fall of I^ai^oleon, and cul-minated
in the outbreak of the present war. If there were time to delve
further into the past we might observe that by a curious coincidence
there were also precisely an hundred years between the Congresses of
Utrecht and Vienna. But we shall only note briefly the chief character-istics
of the century introduced by the latter congress.
The first characteristic which attracts our attention is connoted by a
word now never long absent from the lips of a student of history. The
nineteenth century was preeminently the time of the growth of nations
with a unity of feeling and institutions. There is no need to call the
roll of the countries that passed through that experience. It would be
State Literary and Historical Association. 51
easier to name those that did not. But if the nineteenth century was a
time when the nations grew up from dynastic infancy to self-conscious
political life, it was also a time when the doctrine of individual liberty
as a political ideal received widespread acceptance. In some of the
countries the struggle for liberty and for national unity went hand in
hand. Cavour, for example, cherished a desire to introduce into his
own beloved land both of these ideals, which had been inspired in him
while he resided in the country that was the mother of nations and the
fountain of liberty. And if liberty was finally defeated in the develop-ment
of the German nation it was not because it lacked champions, as
witness the migration of German liberals to this country after their
defeat at home.
Trained in the old school, as most of us are, we have no difficulty in
reconciling these two ideals with all that seems desirable in social life.
It is when we meet the third characteristic in the development of the
nineteenth century that our troubles begin. Excuse it as we may, the
fact is that this century of exuberant national life and zealous pursuit
of liberty was likewise the century in which the strong men of the
nations were most successful in exploiting the weak and in accumulating
and managing in their own interest the fruits of the labor of the less
fortunate. This fact is no less evident if we admit that under the regime
of these strong men has occurred more rapid advancement toward that
vague goal we call civilization than in any other interval of comparable
length in human history. x\.t any rate, in no other century were the
strong men able to work so effectively or to accomplish so much. More-over,
in no other century were the weak, despite their individual liberty,
made more utterly dependent on the strong.
Very little reflection will serve to make it clear that a community
which is striving toward individual liberty as an ideal is laboring to
make it easier for the strong to exploit the weaker. It was the mistress
of the seas, a nation already head and shoulders above her rivals in in-dustry
and commerce, that threw down the gauntlet in the nineteenth
century and challenged the world to adopt a policy of liberty in trade.
And the battle for individual liberty in the past several centuries was
largely fought at the instigation of the strong men of the growing-nations,
who were anxious to throw off the fetters imposed on their
activities by the outworn forms and petty tyrannies of a past age.
The nation itself was largely a by-product of this struggle of the
strong men for an opportunity to exert their strength. In one sense
England got rid of the Stuarts and France the Bourbons in order to
give the strong men control. In Germany the ruling house profited by
the example of other families that had lost power or office, or both.
52 Seventeenth Annual Session
formed a partnership with the strong men of the nation, and cooperated
with them in the task of exploiting the weak. Thus that which the
strong men of the liberty-loving nations did as a right those of Ger-many
did as a privilege. The result was similar in many respects, the
chief difference being that Germany never became a home of liberty.
A little study of the nation makes it clear that, with the average level
of education and general intelligence what it was in the nineteenth cen-tury,
it would have been difficult to invent a contrivance better adapted
to serve the purposes of the strong men. The inhabitants were merged
into a fictitious personality, were provided with proper shibboleths, and
were taught to recognize a code of national honor similar in many
respects to the code prevalent among gentlemen when dueling was in
fashion. Their former loyalty to their clan or to their leader was trans-formed
into an enthusiasm for this complex unity of which they some-how
felt themselves constituent parts, but which tended to blind them
to merits of the question. If they reached a point where it seemed to
be theirs to reason why they but repeated parrot-like arguments made
ready for the occasion by the strong men or the employees of the strong
men who constituted the brains of the fictitious person. If they did
now and then decide questions by their votes they were questions made
ready by some group of these same strong men who also supplied the
reasons for voting one way or another. By this arrangement a member
of the multitude came to feel it a greater obligation than before to spend
himself in support of the honor of this nation of which he felt that he
was a member. It is not remarkable, therefore, that J^Tapoleon, with a
nation at his call, could accomplish greater things than Louis XIV.,
who after all was but a dynastic monarch. I^or is it remarkable that
the nations now at war are striving in a combat which beggars descrip-tion
and which makes all former wars insignificant by contrast.
My chief reason for making these observations is because they seem
to me to betoken something of the future. If I have read history aright,
the ideal of liberty and the conception of a nation which gradually
emerged in the seventeenth and eighteenth centuries, and which, in the
nineteenth, gave the strong men an opportunity never before afforded to
them, is now in a process of transition to another stage in the evolution
of human society. As the nineteenth century may be regarded as the
century of nationalism and liberty, so, it now seems likely, the twentieth
may come to be known as the epoch of democracy and justice. If this
be the true view, the comparatively small groups of strong men who,
under a regime of liberty, were able to build nations and to shape
national policies to their own advantage will yield to a social system
dominated by the mass of the people largely in their own interest.
State Literary and Historical Association. 53
It is tolerably clear that such a change would tend to curtail the
liberty of individuals. ^Nothing is more familiar to thoughtful persons
than the practical antithesis between democracy and liberty. But the
terms have been so frequently married in the loose phraseology of our
public discussions that the less careful think of them as almost comple-mentary,
and a word of emphasis on the distinction is not out of place.
The point is that the more completely the mass of the people come into
a realization of their real potency in producing the wealth and fighting
the battles of the world the less inclined they are to abide by the old
doctrine of laissez faire. Of course, even those eighteenth and nine-teenth
century enthusiasts who thought the least governed people to
be the best governed were far from believing in absolute liberty, but
they w^ere convinced that it would be for the advantage of society to
give a wide latitude to individual activity. The democrats, on the other
hand, know that if liberty is in vogue to this extent, particularly in the
economic world, the strong men will increase their strength, too fre-quently
at the expense of the weak. And so it is a natural tendency of
the more numerous weak, when they awake to the situation, to organize
themselves for the purpose of bidding defiance to the strong, even though
it is necessary to give up somewhat of their liberty in so doing.
This clash of democracy and liberty is apparent in the opposition to
child-labor legislation, compulsory school laws, factory legislation, and
the like. Whether one agrees with the supporters of these measures or
not,